Last week, the National Labor Relations Board issued a complaint against UNICCO-the contractor providing custodial and landscaping services for the University of Miami-charging the firm with unlawfully thwarting its workers’ efforts to secure representation by the Service Employees International Union. The NLRB’s action sheds revealing light on UNICCO’s recent call for the Union to submit to an NLRB-conducted secret-ballot election-a call publicly supported by UM President Donna Shalala, despite her repeated assurances of University “neutrality” with respect to the union campaign.
A UNICCO official elaborated the firm’s stance in a letter published in the Hurricane on December 2, asserting that “secret ballot voting is a basic American right”; that an NLRB election “will provide an expeditious resolution to the question of whether UNICCO employees wish to be represented by the SEIU”; and that secret-ballot elections are “what American democracy is all about.”
Yet UNICCO’s purported concern for its workers’ rights is undermined by last week’s NLRB action citing the firm for violating the very rights UNICCO is invoking. Specifically, the NLRB found reasonable cause to believe that UNICCO officials interrogated workers about their Union support; prohibited them from talking about the Union at work; forced them to sign a statement disavowing the Union; accused them of “disloyalty” for participating in off-hours Union functions; threatened reprisals against Union supporters; and conducted unlawful surveillance of a Union meeting.
If these allegations are true, UNICCO would not be the first American employer to respond to a union campaign this way. Labor scholars estimate that employers unlawfully fire union supporters in as many as one out of every three union campaigns, and a pattern of interference of the sort alleged against UNICCO is distressingly common.
However these particular allegations are resolved, UNICCO’s claim that an NLRB-conducted election will ensure an “expeditious resolution” of the organizing campaign is similarly unconvincing. 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 percent 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.
As a result of unlawful employer interference of the sort alleged against UNICCO, and in response to the ineffectiveness 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.
Just as American workers have a legal right to decide on their own whether to have a union, they also have the right to decide how they wish to pursue that goal, despite UNICCO’s suggestion that anything short of a government-sponsored election is incompatible with “American democracy.” This is not, after all, a political contest between two parties that stand on equal footing, for only one of them can fire voters, demote them, lower their pay and cut their hours at will. The other party-the SEIU-can do what, exactly, if the workers don’t support its cause? Refuse to give them SEIU T-shirts? Deny them seconds at a union-sponsored barbecue?
It’s an old story for management to try to tell its most vulnerable workers-in this case a workforce made up largely of women, people of color, and recent immigrants-how to exercise their rights and what’s really in their best interests. And for UM President Shalala to support UNICCO in that effort even as she insists on UM’s “neutrality” is an embarrassment to the entire University community.
Richard Michael Fischl is a professor at the School of Law. He can be contacted at r.fischl@miami.edu.