It is a naivety that travels immediately the route to manifest stupidity for anyone to suggest that management, of itself and unencumbered of the least legal peril, will concern itself with worker welfare.

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Wednesday, March 25, 2009. The Senate Democrats leaning away from legislation designed to provide workers greater ability to organize, Mark Pryor and Blanche Lincoln, are both from Arkansas, the home state of Wal-Mart. Perhaps you think that has no bearing on their posture. I don't think there's any doubt at all that the fact of the big-box retailer has been highly influential; no Profiles in Courage there.

On Monday, Senate Republicans held an open conference on the "Employee Free Choice Act." (http://www.c-span.org/Watch/watch.aspx?MediaId=Economy-A-16607) The featured panel members included Senators Orin Hatch (R-UT), Bob Bennett (R-UT), Mitch McConnell (R-KY), and James Risch (R-ID). Witnesses included Eugene Scalia, son of Supreme Court Associate Justice Antonin Scalia and former Bush 41 Labor Department Solicitor, Mr. Frank Cannon, a foreman for a construction company, and Ms. Kathy Gornik, current head of the Consumer Electronics Association. 

An interesting and telling anecdote was Mr. Scalia stating there existed a marked difference between management speech, which is protected by the First Amendment, and coercion, which is not. He asserted that however it is and has been the entrepreneurs who created the jobs and they thus have a right to speak to their employees, outside adgitators for labor unions do not. While "entrepreneur" may be an accurate representation for execs such as Steve Jobs of Apple, and others like him, it is most certainly disingenuous, at best, and an intentional lie, at worst, to suggest that management at Sears, at Wal-Mart, at Target, at Bank of America, at Merrill Lynch, at AIG, etc. bear even a remote semblance to anything entrepreneurial.

Some facts about the Act demand notation. First, the card check provision is one of two options available to organizers; the other being a secret ballot initiative. Once the 50 percent plus 1, whether via card check or secret ballot, minimum number of non-management employees have indicated a preference for union representation, the time in which a contract must be negotiated is 90 days. In the instance no contract has been reached, binding arbitration through a federally appointed arbitrator is mandatory, and the decision by the arbitration panel is binding and supposedly non-litigable.

If what Senator Bennett opined bore even a first blush relationship with reality, that "the issue is what employees want, if they want a union then they should have one after having had the chance to vote informed and uncoerced," few would likely disagree. However, as reflected in the GAO (Government Accountability Office) report that was released this morning, the fiction Bennett suggests mirrors reality is not the reality workers today deal with.     

The reason this 90-day provision is quintessential is the "coercive" history of employers, once faced with a union oriented workforce, to fail utterly to bargain in good conscience, and to drag the process out indefinitely, thus negating entirely a union, and he employee protections one provides, in the workplace. The fact that workers have stated a clear wish for union representation becomes a cynical circus farce, during which time management fires those it merely suspects may have advocated - or even been sympathetic to - any element of unionization. As employees watche as coworkers summarily lose their jobs, those remaining receive the intimidating message, loud and clear.

As summary, all the senators and each of the witnesses spoke as a chorus in opposition to the Act; not because it might make things more difficult for management, but because, as each claimed, they were solidly pro-worker: The Act would, they announced, negatively impact both the rights and welfare of America's working men and women. That was the central concern they enunciated. To me, it was all too much "Through the Looking Glass":

"Oh Oysters, come and walk with us!"

The Walrus did beseech.

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But wait a bit," the Oysters cried,

"Before we have our chat;

For some of us are out of breath,

And all of us are fat."

_

"I weep for you," the Walrus said:

"I deeply sympathize,"

With sobs and tears he sorted out

Those of the largest size,

Holding his pocket-handkerchief

Before his streaming eyes.   

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But answer came there none --

And this was scarcely odd, because 

They'd eaten every one."

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While the top 1% of those atop America's corporations have seen their incomes expand exponentially beyond 344 times those that employees earn, the average worker's income has been flat for the past three decades, barely keeping up with inflation, and, in many, many instances, falling behind.

This morning, GAO (Government Accountability Office) released a 35-page report, "DEPARTMENT OF LABOR, Wage and Hour Division's Complaint Intake and Investigative Processes Leave Low Wage Workers Vulnerable to Wage Theft." (http://www.gao.gov/new.items/d09458t.pdf) Damned hardly begins to define how indicted the Labor Department ought to be regarded. 

The cabinet-level department is charged with protecting the rights and working place welfare and safety of this country's workers. Since Ronald Reagan, however, it has operated more like the federal arm of the Chamber of Commerce--suppressing wages, endangering employees, and actively working to snuff out the formation of unions while at the same time doing all it can to eliminate those unions presently in existence.

Have a peek into the report.

The report found the department had mishandled 90% of cases investigated by a team of undercover agents.

In direct contravention of Department regs, five of 10 complaints filed by the undercover agents weren't even recorded in the Wage and Hour Division's data base.

One of the recorded, monitored conversations between Division staff and an employer is included here as typical:

Employer: "Well, you know, like I said, all our contracts have dried up, we really don't have anything coming in, so . . ."

Division staff: "Okay, so you're not in a position where you can pay him?"

At that, the staffer ended the conversation and the investigation with a reminder to the employer that the complaining employee would be advised of his rights to sue.

In one cited instance, an undercover agent, posing as a dishwasher, complained four times about not being paid for 19 weeks of overtime he was due, by Florida law. It took four months for the Florida office to even call the worker back, and when it did, it advised the fellow no further notice of the labor law violations, or an investigation of them, would proceed for an additional eight to ten months. Another example is of a restaurant that had misappropriated workers tips and had forced them to work "off the clock." Although a total of $230,000 was owed the workers, the Division tarried for 22 months to even look into the matter, then dropped the issue entirely once the employer agreed to pay the back wages, but not the tips the employer had illegally comingled with its own receipts.

In two instances, the Division recorded in the files that employers had paid the back wages owed, regardless that the employers had done no such thing.

GAO stated that the Division frequently dismissed the cases when employers failed to return calls. On many occasions, the low-wage workers were advised to file lawsuits against their employers, rather than seek assistance from a cabinet department whose sole purpose it is to monitor employer abuse, on behalf of those very swame American workers.

The department declined to explore a Modesto meatpacker for hiring underage children, and of having those children operate hazardous machinery - during school hours!

Because the link to the relatively brief report has been provided above, I'm including just one additional example. A Montana boarding school owed employees in excess of $200,000 for overtime they had worked. As the 2-year statute of limitations approached, the school hardened its stand to not pay the employees anything. The school's posture changed only slightly after the Division offered to drop the entire thing if the school would settle for $1,000. 

Bear in mind that the nine-month report predates the Obama presidency, it's part of Bush Administration history. But the tawdry theft of worker wages didn't begin with Bush 43, it actually gained its most recent genesis with Ronald Reagan. While we can hope that President Obama's new Labor Department secretary, Hilda Solis, reinvigorates in her department an energetic pro-active attitude, 30 years of an entrenched culture that is  precisely the opposite may be an arduous and prolonged task. Employees, and most particularly low-wage employees, have long been schooled to abide quietly an employer's harassment and to follow obediantly intimidating directions, even when the employee knows, or strongly suspects, the managment has crossed the legal line. To complain is to face firing; something a low-wage worker can ill afford.

It is a naivety that travels immediately the route to manifest stupidity for anyone to suggest that management, of itself and unencumbered of the least legal peril, will concern itself with worker welfare. Or is business somehow distinct from the rest of humankind and has the species evolved to such a magnanimous and well intentioned elevation that we can dispense with police departments and the criminal justice system?

Ridiculous! Wages have been torpedoed to abysmal negative growth, working conditions have deteriorated steadily, and the American workforce outnumbers demand to the point all leverage lies with the employer. A strong union counterbalance is today an absolute necessity.

Disclosure: Now retired, from 1978 through January, 2008, I was a business-for-self, sole proprietor entrepreneur. The last time I actually labored under the protection of a union was from July, 1967 to August, 1968. 

Authors Bio:
An "Old Army Vet" and liberal, qua liberal, with a passion for open inquiry in a neverending quest for truth unpoisoned by religious superstitions. Per Voltaire: "He who can lead you to believe an absurdity can lead you to commit an atrocity."