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The Lost Right to Unionize

Steven Pearlstein
Washington Post Business and Economy Columnist
Wednesday, February 25, 2004; 11:00 AM

Washington Post columnist Steven Pearlstein was online to talk about his column on the National Labor Relations Board's failure to defend the rights of U.S. workers to unionize. A transcript follows.

About Pearlstein

_____Past Columns_____
China's Confounding Contradictions (The Washington Post, Sep 15, 2004)
Choice Is Overrated (The Washington Post, Sep 10, 2004)
Getting Out Of Biotech's Second Tier (The Washington Post, Sep 8, 2004)
Column Archive

Steven Pearlstein writes about business and the economy for The Washington Post. His columns on the economy appear every Wednesday and Friday.

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Washington, D.C.: Thanks for your great column today. People today do not realize that they can thank unions for inventing the 40-hour week, weekends and benefits like paid vacation.

Unions are vitally needed where there is bad management - and if the latest corporate scandals and job flight isn't a wakeup call - I don't know what is.

How can the National Labor Relations Board be strengthened and actually perform its function? It seems that there is undue influence from the corporate interests that are dictating politics.

To understand a bit of the Wal-Mart experience read Barbara Ehrenreich's book 'Nickel and Dimed, the Art of Not Making It in America'

Steven Pearlstein: Thanks for your note. There's lots of ways the NLRB can be strengthened, but the first step is to reverse the long-term trend in which the agency has become highly politicized, both at the board level and at the level of the general counsel who really decides which cases to bring through the system. The whole process has been politicized by both sides, union and management, to the point that the rule of law has been badly subverted. The rights afforded to workers and employers under the law should be subject to whether or not a Democrat or Republican happens to be in the White House, which is the case now. We wouldn't allow an agency like the SEC to have become so politicized, and it hasn't been, despite modest changes in emphasis with the appointment of new members and chairmen. The same ought to apply to the NLRB.


Olney, Md.: Wow, how can it be that Wal-Mart can successfully blackball workers' rights to organize and get away with it? I wasn't aware of Leonard Page's firing. This is shocking. Even if the workers vote down union representation, at least they should get the opportunity. I know Wal-Mart fears having to operate, especially at its Super formats, with costs approaching that of union shops such as Albertsons, A&P, Safeway and Krogers. Their so-called miracle advantage would be almost wiped out, and they would have to compete the old-fashioned way with customer service, clean stores and quick checkout, which they compensate for the lack of with prices a few cents lower.

Why should Wal-Mart have such an advantage?
What can be done about it?

Steven Pearlstein: I think you are jumping to some conclusions here. First, we don't know Wal-Mart workers would vote to unionize if given a fair chance to do so. There is some evidence that they are pretty happy folks in many places and like the less confrontational setup they have now. They also know that their employer has a market advantage because of its low prices which are due, in some part, to not having a union. So who knows? The other problem is that you assume that even if there is a union, the Wal-Mart union members will get the same wages as unionized employees elsewhere. There is no guarantee of industry-wide bargaining, and in fact I think it is doubtful. So it may be that having a union will increase benefits a bit and maybe even pay for unionized Wal-Mart workers, but not necessarily to the levels paid by unionized competitors. It's good for the economy to have lots of different models.


Washington, D.C.: Dear Mr. Pearlstein -- I want to thank you for taking a humanistic approach to contemporary economic issues. Your columns provide a healthy corrective to the all too common belief that the "market" is a non-political institution whose supposedly perfect workings are hindered by regulations. As your columns show, market forces such as large corporations are not simply economic institutions; they have great power, not only over their employees but throughout American society. As long as corporations wield economic, political and social power, public authority and regulations are essential to make sure that marketplace activities are consistent with the humane values and democratic purposes of our society. Thanks for showing readers that business is not simply about economics but also about political power in our society.

Steven Pearlstein: Some nice points, particularly that economic systems operate in a political context where economic power can be used to attain political power and tilt the rules of the economy in ways that may not be efficiency-producing. Now, of course, unions are viewed by most traditional economists as bad because they distort free market competition in the labor market, which is why you don't hear them complaining about the deterioration of workers' rights. But there is some evidence that unions have had a positive effect in equalizing the distribution of income, which is a social goal if not an economic one.


Alexandria, Va.: Not only is Mr. Rosenfeld a "gutless regulator," but he is affirmatively a union buster, both of those he regulates and those he employs. Recent sworn testimony by his chief labor relations negotiator admitted that his strategy for negotiating with his agency's federal employee unions is to "wear them down" by making negotiating as difficult and time-consuming as possible, including by personal attacks and planned disruptive outbursts, and thereby to "ram a contract through." Is this appropriate conduct for the nation's chief labor relation's official?

Steven Pearlstein: Didn't know that. Thanks for sharing it.


Bethesda, Md.: As a career manager for the NLRB, I completely share your view of the current political appointees' abject failure to enforce the law. My only question is, why would you expect anything different from a president who took office by unlawful, fraudulent means, and whose entire administration has been exemplified by a pervasive lawlessness and willingness to reward his friends and supporters at the expense of the public good?

Steven Pearlstein: Yeah, but what do you really think about President Bush?


Arlington, Va.: You say that Arthur Rosenfeld is merely gutless and of no distinction. I think you strongly understate his anti-union animus. Not only has he consistently bent the law to fit his political agenda, but he has also been on a steady jihad against the NLRB's own unions. Mr. Rosenfeld has faced, and currently faces, a flood of grievances, EEO complaints, and ULP charges that allege not only unlawful union-busting of the NLRB unions, but discrimination on the basis of sex and age. Isn't this something more than being gutless?

Steven Pearlstein: Ah, I see this is a sore point with NLRB employees.


New York, N.Y.: Thanks for another great column about Slave-mart and the new face of those cheap labor conservatives of the Bush administration including Arthur F. Rosenfeld.

In a past chat about Slave-mart wages and low prices, someone slammed me because I refused to step into this store. I would like to point out that unions gave the US workers the weekend.

I am unemployed and last year by educating myself using sales and double coupons offered by my supermarket, Stop & Shop, I was able to save $1900 on my food bill. I did not have to shop at Slave-mart to save .25 on a tube of Colgate because I basically got it for nothing or close to with a little planning and the coupons. Granted, I can't buy a set of sheets at my supermarket but I can buy them where employees are given a fair wage and benefits.

Consumers have to be educated that communities will become ghost towns while the cheap labor conservatives a.k.a. owners of Slave-mart are becoming billionaires and enriching themselves in the race to the bottom.

Steven Pearlstein: I think that's a bit harsh and unfair. I also don't think we'll all be making Wal-Mart wages before long if Wal-Mart isn't stopped in its tracks, as some unions and lefties claim. But it is clear they have had an effect on wages among unskilled workers for lots of reasons, both as an employer of American and as a stimulant to sending production of goods to China.


Washington, D.C.: You call Mr. Rosenfeld a "gutless regulator," but isn't it something more intentional and active than gutlessness? Isn't he just carrying out the anti-worker, anti-environment, anti-middle-class and poor policies of a president who has purposefully appointed corrupt officials throughout the government who refuse to enforce the law on principle, whether it be at the EPA, or the FDA or the Office of Special Counsel (which now refuses to tell federal employees that they are protected against discrimination on the basis of sexual orientation, despite promising Congress prior to nomination that he would enforce those protections)?

Steven Pearlstein: I suspect, actually, he is more gutless than venal, but that is just a guess, since of course I have not met him. He doesn't talk to journalists or the public. You wonder if a guy can't hold his own with a mere scribbler or a member of the public, whether he is really up to such an important job.


Chevy Chase, Md.: Doesn't the president have a right to carry out the political positions on which he was elected? President Bush was elected with a clear position that unions were bad for the economy and inimical to human freedom, and his statements and supporters were well known before the election. Doesn't he have the right to enforce the law as he sees fit?

Steven Pearlstein: No, he doesn't have the right not to enforce the law. In fact, he takes an oath to enforce it. And while reasonable people can disagree about what that means, it doesn't include totally ignoring the law, which is what Rosenfeld is doing. This isn't a close call, trust me. I consulted with several law professors and former general counsels on this one, and that's what they told me. If you think unions are inimical to human freedom, or the president does, then he should have the guts to ask Congress to repeal the Wagner Act overtly rather than subverting it covertly. Just because a president is elected doesn't mean he can pick and chose what laws he wants to enforce.


Portland, Maine: I live in the Northeast where we've lost thousands of jobs in the shoe, textile and now paper industries. We were told not to worry -- all these jobs would be replaced by "better" jobs in the "new economy." I was recently told that it took us 20 years to recover from this job loss but that we finally had. Nonsense! We've NEVER recovered from the loss of these industries. As your column makes clear, a job at Wal-Mart is not an acceptable substitute.

Ultimately, I think Bush may be the best thing that happened to Democrats and labor unions in a long time -- people in the working class and middle class are finally waking up that reverse Robin Hood doesn't work. Nothing trickles down and that they have to fight for themselves, because no one else will.

Steven Pearlstein: Thanks for your note, although I must say I disagree on two points. One, that region of the country, where I happen to come from, has recovered, although some of the people who lost their jobs, and some of their communities, never did. Second, I never said, nor do I believe, that a Wal-Mart job is a bad job. For certain people at certain times it is a fine job. Let's not overstate the case here or try to turn Wal-Mart into the evil empire. You don't get to be the biggest company in the United States if you have nothing good to offer.


Alexandria, Va.: Mr. Pearlstein: I share your views, but I'm wondering if there's an inherent conflict between the generally pro-free trade line you take in your columns and your piece today on workers' rights. We live in an increasingly globalized world, and lots of jobs are heading overseas. Wal-Mart can't outsource its retail workforce, but neither can it afford to pay them too much (or much at all) if it hopes to compete. I'm no Wal-Mart apologist -- far from it. But can they be blamed for playing by the capitalist rules?

Steven Pearlstein: They can't be blamed for playing by the rules. But that doesn't mean the rules can be tweaked to deliver the best social, political and economic outcome -- they weren't handed down by God from Mt. Sinai, after all. And it doesn't mean that Wal-Mart is even abiding by the rules we already have. In fact, the point of the column is to suggest that they haven't, and the NLRB ought to be more aggressive in investigating that possibility.


Washington, D.C.: Steven -- Tremendous column. The war on the right to organize has been raging for nearly 20 years -- never more so than in the "Wal-Mart Era" -- but it's been nearly invisible in the news media, and pieces like yours are consequently that much more important.

Why do you think that news outlets tend to ignore union issues? Is it a class thing?

Steven Pearlstein: I don't know how to answer your last question, and it is a very good one. When I plugged into our news database, Factiva, to find out who had written about the firing of Leonard Page, I got only one hit, from a Detroit newspaper, six months after it happened. But I agree that one reason the NLRB has become so politicized and ineffective is that the public spotlight has not been shined on it. It has become an arcane bureaucratic backwater covered only by the trade journals. Newspapers like ours used to have labor reporters, but with the decline in the power and importance of unions, that job has largely disappeared. There is also a feeling that the way to cover workplace issues isn't to simply cover the government bureaucracy that deals with it, which is true. But that doesn't mean ignoring the policy apparatus entirely, which is the case.

By the way, interesting story: the only reason Arthur Rosenfeld was confirmed the day after he was nominated was that he was an aide to Sen. Jim Jeffords (I-Vt.), who insisted that he be confirmed by the Democrats as a condition for his jumping from the Republican party. I'm not sure there was even much of a hearing on his nomination.


Falls Church, Va.: This might be a cynical observation, but the difference between 2004 and 1935 is the fact that we do not have a sophisticated working class or, rather, a working class that's highly centralized in a industrial centers -- and thus easily mobilized -- like we did prior to WWII.

Those jobs are largely gone for good, and now people who once made steel for a living are finding themselves in retail jobs. The retail sector is widely dispersed, shift work is spread across many days etc. Workers are cut off from each other, making it difficult to organize them. It's unlikely that Wal-Mart will face a huge body of workers united in the fight for a union, even if Wal-Mart didn't engage in so many anti-union activities.

I'm wondering if the unions themselves aren't somewhat to blame. They continue to be largely organized around industrial job sectors. Only the SEIU has had success, but uneven success at best. Let's heap a little scorn on the unions for failing to take the fight back to the trenches.

Steven Pearlstein: Well, those are interesting points. It is clear that the union movement has not fully adapted to the structure of the new economy. And that includes the nature of unions and what it means to belong to a union and what types of issues are subject to union negotiation and what role is played by strikes versus public relations pressure. The SEIU has done a much better job of thinking about all this, as you say. And one thing they have decided is not to pay much attention to trying to get NLRB certified elections, but to bring public pressure on companies to voluntarily agree to bargaining with unions, as in the case of the janitors. In fact, overall, only 20 percent of new union members come through the process of NLRB supervised certification elections.


Detroit, Mich.: Thanks for a great column -- it's rare to read anything in the mainstream press that acknowledges that declining union membership isn't caused by a lack of worker interest but rather by a quantum leap in employer opposition. Full disclosure: I work in the National Organizing Department of the UAW and I am wondering if you are familiar with the years long struggles of workers at either Chef Solutions or Saint Gobain. Both are current and particularly egregious examples of employer defiance -- both happen to involve foreign-owned companies. Frank Joyce, UAW

Steven Pearlstein: No I was not Frank, so thanks for bringing that to our attention. Whether they are foreign owned or not, however, shouldn't really be a big factor. Who owns General Motors? A lot of foreign investors, it turns out.


Wichita, Kan.: Do you support giving government contracts, paid for with workers' money, to companies like Boeing who engage in union busting?

Steven Pearlstein: If the labor laws are enforced and strengthened as far as their sanctions are concerned, I suspect that problem would solve itself without having to resort to linkage as you propose.


Arlington, Va.: I think Wal-Mart is pro-working class. Its low prices help a lot of families get by.

Steven Pearlstein: No arguing with the specific point.


Alexandria, Va.: What about the rights of workers not to unionize? Currently the NLRB is refusing to prosecute charges brought by dozens of workers under "neutrality" agreements that union officials are using to bypass NLRB-supervised secret ballot representation elections. These deals are between the employer and union, and trample the rights of workers to decide unionization for themselves. Instead of selling union membership on its merits, union officials are using bribery, harassment and extortion to get workers to sign union membership cards. Shouldn't the NLRB be protecting the right not to unionize as well?

Steven Pearlstein: This is a complicated and contentious issue and I don't pretend to know much about it. But I don't believe anyone can be forced to join a union if a majority of the workers in the bargaining unit haven't voluntarily handed in union cards. Now if you're asking about the fairness of closed shops that require everyone to join a union once recognized, well, that's a longstanding debate in which the laws differ state to state.


Washington, D.C..: Kudos to you for shedding light on a chronically neglected subject: the inability of American workers to exercise their federally guaranteed right to form unions.

At the Post, employees can join their union and make it stronger without fear of reprisals. My questions is: what has kept you from joining the Guild?

Steven Pearlstein: That's a long story that I won't bore you with, but it goes back to the days when I was a manager and editor and was dealt with in a fairly unprofessional way by the guild negotiators and some of the guild leaders. In the past, I've tried to avoid the free riding dilemma by making a contribution to the union without joining. But in truth most of the raises I've got I've negotiated on my own, without the help of the union.


Washington D.C.: But without union representation workers must take what the employer gives in the way of wages, benefits and working conditions. Only through collective bargaining gained from unionization, can workers achieve higher wages and benefits. Currently, Wal-Mart urges its workers to enroll in public/federally financed health care, such as the Children Health Insurance Program (CHIP). It is all of us taxpayers who are paying for Wal-Mart's low-prices.

Steven Pearlstein: I've read that. Very interesting. As you may know from my past columns, I think all employers ought to be required by federal law to offer a basic health insurance policy to all employees and pay for half of it.


Garden City, N.Y.: With the National Labor Relations Board's failure to defend the rights of U.S. workers to unionize, shouldn't we change our national motto from "home of the free" to "home where only corporations are free!. Why doesn't the U.S. government recognize the fact unions raise the quality of life for their members, their neighborhoods and the communities they share, and allow workers the dignity they deserve.

Steven Pearlstein: Well, the Wagner Act sort of did that implicitly. But let me say, on behalf of all my good friends on the other side of this issue, that sometimes unions can become corrupt, or more interested in what's good for unions as opposed to union members, or can be so pigheaded and selfish that they help destroy the companies and the jobs where their members work. So this is not a black and white issue. But it ought to be settled, in the end, by the workers themselves, in elections that are free from intimidation and thuggery on the part of both management and unions.


Pittsburgh, Pa.: I was involved in a union election under the NLRB where, going in, the union had over 90% of the workers signed up. In the two months before the scheduled election, the company hired a consultant who held group meetings with the employees each and every day talking against the union. The anti-union tone was ratcheted up as each day passed. During one such meeting, the workers were shown a video of graphic violence depicting striking union members in what looked like a riot situation. The video ended with a full-screen picture of Jimmy Hoffa and blood dripping down from the top to the bottom until the whole screen was blood red. It was horrific. This continued up until the day before the election, when each and every employee was individually cornered by some member of management and asked to vote against the union. The atmosphere was absolutely hostile and intimidating, but I am given to understand that it was all perfectly legal under the National Labor Relations Act. One the day of the election, the union lost the vote by three to one. In the face of the intimidation, those workers who voted in favor of union representation were, in my opinion, heroes.

Steven Pearlstein: I'm afraid the story you tell is not unique. And one guy you can thank for that is Arthur F. Rosenfeld, as well as many of the five current members of the NLRB.


Concord, N.H.: I like to be optimistic, if somewhat cynical. Thus, when I look at the history of Wal-Mart, I like to believe that it will inevitably open up to some unions, at least in strong union states. Wal-Mart began with almost a dot-com compensation model, giving all employees some form of equity-based compensation. That stopped looking so good to employees when the stock price stagnated. With traditional legal ownership rights in the business not as appealing, it seems inevitable that employees will look for, and eventually find, other ways to protect and enhance their stake in the company (this change likely will follow recognition that the employees' stake in the business is, and should be, fundamentally different from the stakes of the money capital suppliers and their management representatives). Collective action (employee protection is a classic collective action problem after all) is the best way to do this and will happen one day, although we will need patience to see it.

Steven Pearlstein: I think you've hit the nail right on the head. The old Wal-Mart model has reached the end of its string.


Potomac, Md.: Mr. Pearlstein (or is it Krugman?), you write the BUSINESS column in The Washington Post. I don't read the BUSINESS column to hear about poor people or about union flunkies. I read about how I can get richer in my business. Should I invest in energy stocks now? Who should I see to get U.S. contracts in captive foreign markets? Which legislator or administration official is the point person on deregulation proposals that will enrich me? That's what BUSINESS is about. People who work at Wal-Mart made their bed when their parents couldn't get real jobs in this world. If they don't want to fight in our military to make a contribution to me, then they better go work at Wal-Mart because I'm surely not paying them welfare checks. Get off your Krugman horse and do your job!;

Steven Pearlstein: That may be what you expect from the BUSINESS section but that's not what the editors of this newspaper have charged us with doing. We write for workers, managers, consumers, investors and just plain folks about many aspects of their economic and business lives. If you'd like that mission changed, you can write to the Executive Editor, Leonard Downie at the Post. Or perhaps you should simply confine yourself to the editorial page of the Wall Street Journal.


Scarsdale, N.Y.: I read your column today, and I have two words: so what? Unions take untalented people and let them sit on their duffs. That creates to our lazy nation. That's what's so great about Iraq; we've taken people who would otherwise sit around with nothing to do and we've sent them to secure our energy sources for the next century. That's why we should have a marketplace draft. You can make a contribution to buy your way out, or you can go in and serve as payback for the welfare you'll inevitably be collecting. Let the talented people do the work to build the American economy, and let the others make some sort of real contribution as a condition for the privilege of living as a working-class person in the U.S. rather than in someplace like El Salvador.

Steven Pearlstein: The view from Scarsdale. Thanks for sharing....


Houston, Texas: How many Americans are served by unions as a percentage of the total work force? Is membership/power of the employee going up, down, or hanging?

Finally, my job moved to Cambodia. Can I at least expect a post card from it?

Proud to be a George Bush Republican

Steven Pearlstein: IN the private workforce, the union density is now down to 8.6 percent, which could be for lots of reasons, including the inability of unions to adapt to the new environment. But let me assure you it also reflects the hijacking of the Wagner Act and the hollowing out the right to form and join a union.


Washington, D.C.: I thought your column was right on the mark and wonderfully juxtaposed across the page from the article on the Robert's family control over Comcast. Unknown to most Americans or policymakers, sadly, Comcast is carrying out Wal-Mart's union-busting policies everyday against workers who want, and have formed, unions. Over the last two years, the company has led successful decertifcations against bargaining units established earlier by workers. The company won the decerts because it refused to bargain fairly with workers which created frustration among employees who were waiting to get a first union contract. Wal-Mart is bad, but Comcast is a far more dangerous threat to workers' ability to organize unions and get collective bargaining rights as the law allows -- but as the Labor Board, the Department of Labor and the Bush Administration fails to uphold.

washingtonpost.com: Comcast Family Protects Power -- in today's Post.

Steven Pearlstein: Can't say I know personally anything about Comcast's labor relations but thanks for alerting us to the issue.


Steven Pearlstein: That's it for today, folks. See you next week.


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