Holding all the cards

As a rule, they don’t shoot workers in the fields and at the loading docks anymore. This Labor Day, we can all be thankful for that. But trying to form a union can make your life miserable still.

Just ask Gene Esparza, a forklift driver who’s been with Blue Diamond, the international almond exporter headquartered here in downtown Sacramento, since 1969. That’s 38 years. Esparza makes $15.45 an hour, and he pays $500 a month for health insurance for himself, his wife and his two kids.

Esparza is among the workers trying to organize a union at Blue Diamond. “We’re not trying to hurt the company,” he says, “but I’ve got a family to raise. My kids want milk in their cereal. I need to put gas in the car.” He said he hadn’t gotten a raise for 15 years, until the International Longshore and Warehouse Union started helping workers organize a union in 2004. For Esparza and other plant workers, unionization is a no-brainer. But the campaign has been bitter.

The company sends out regular anti-union memos and makes attendance to meetings with supervisors about the union mandatory. Bosses constantly dog workers to make sure they aren’t talking about union business, Esparza claims. “I’ve had bosses come up to me and ask me who I was talking to, how many minutes I was talking to them for. Every time that happens I whip out my little notebook and I say ‘I feel you are harassing me right now.’

“There are a lot of people who aren’t very happy. The morale is low. And some people won’t talk to me anymore because they are afraid they are being watched,” Esparza said.

Two Blue Diamond workers have been fired for trying to form a union, according to a 2006 investigation by the National Labor Relations Board, which later ordered the workers reinstated. The company was busted for a total of 20 labor-law violations, including threatening workers with wage and benefits losses and “coercively interrogating employees” about union activity.

Here’s the weird part: The company wants to hold a union election immediately. Blue Diamond says if the workers want a union so bad, let them vote.

The ILWU and union supporters, however, say there’s no way an election held today would be fair in the “toxic environment” created by Blue Diamond’s anti-union campaign.

“It’s something like spousal abuse,” said Everett Burdan, an organizer with ILWU, in which a wife-beater dares his wife to file charges. “The company abuses these people. After their campaign of terror, then they want to have a vote.”

That’s why the union is demanding that the company back off and enter into a “neutrality agreement” with the union. They also want the company to agree to what is called “majority sign up” or a “card check” process for recognizing the union. Under card check, the union would be allowed to represent workers if a majority of employees sign union authorization cards. In other words, no formal election.

As a result, the Blue Diamond campaign has become something of a poster child for a national movement to expand a worker’s right to organize using the card-check process. If successful, it would be one of the most significant labor-law reforms in decades.

The labor movement is pinning its hopes on federal legislation called the Employee Free Choice Act, introduced by Rep. George Miller, D-Concord, who chairs the House Education and Labor Committee. At the heart of his bill is a provision that allows workers to form unions when a majority of employees sign union cards. It wouldn’t do away with secret ballots, but it would give workers another option.

“The top priority for the labor movement everywhere is card check,” explained Caitlin Vega with the California Labor Federation.

But card check may be a tough sell to the man on the street. Americans like elections. We’re hardwired to believe that elections are synonymous with democracy. And when employers make the argument that card check would “take away a workers right to vote,” it pushes people’s buttons.

“Blue Diamond supports an election for workers to decide how they would like to be represented at their company,” Blue Diamond spokeswoman Susan Brauner told SN&R. “We feel that an election sanctioned and overseen by the National Labor Relations Board protects the workers constitutional right to cast a vote in the election process.”

But imagine an election in which one side has unlimited access to voters, has almost complete control over the message being presented to the voters, has control over the voter livelihoods, and even has the power to escort voters to the voting booth. That, say union activists, is the U.S. labor-law version of democracy.

One Blue Diamond worker fired for organizing, Ivo Camilo, testified before Congress in support of EFCA in February, saying the company had put out 30 separate anti-union fliers during the campaign, had held mandatory “captive audience” meetings and had threatened to close down the plant if the workers voted union. “Do you think we would have had a free choice if we voted then?” Camilo asked the congressional panel. “In the current election system, one side has all the power. … That is the reason we need majority sign up.”

Blue Diamond’s response to organizing efforts is typical of what’s been happening to the modern labor movement, said Vega from the Labor Federation. Instead of the Pinkertons, companies call in the consultants. “There is this whole industry of consultants out there, who market themselves as being able to promote ‘a union free environment,’” Vega said. These consultants train supervisors to recognize and head off union activity, and provide handy talking points to dissuade workers from joining the union.

“You hear the same messages over and over again,” said Vega. “It always ‘We’re a family here, please don’t bring in this third party.’ Or ‘You’re going to lose what you already have if the union comes in.’”

The AFL-CIO reports that nationally more than half of all employers faced with an organizing drive tell their workers that they will close the business if the union comes in. A little more than half of all businesses that employ undocumented workers threaten to call immigration authorities at some point during the organizing drive. And about three quarters of all employers call in professional consultants to take over the anti-union campaign.

And although it’s illegal to fire someone for labor organizing, it happens more than people realize, said Vega.

“Firing an employee who tries to form a union is seen as cost effective,” said Vega, explaining that the process of filing an unfair labor practices complaint is too onerous for most workers, and because the penalties are often slight enough. “From a cost/benefit perspective, it’s a totally rational decision.”

The idea of card check or majority sign up is not new or unheard of. All public employees in the United States enjoy the right to a card-check process for unionizing. And it’s the law of the land in Canada and the U.K. Whereas union membership in the United States is about 12 percent in the private sector, it’s above 30 percent in Canada.

In addition to making it easier to form unions, EFCA also would increase penalties for labor-law violations, and it gives unions greater power to get restraining orders against companies that violate labor laws. And although federal law now requires employers to bargain with unions once they are recognized, actual contracts are rare as employers and unions get bogged down in years of negotiation and litigation. EFCA guarantees a contract, because it requires federal arbitrators to get involved when union-employer negotiations stall.

In the spring, EFCA passed the House and Democrats counted a majority of support for the law in the U.S. Senate, but not enough votes to keep it from being filibustered. And, even if EFCA had been sent to President Bush, he almost certainly would have vetoed it. Naturally, labor is hoping they’ll have a friendly Democrat in the White House in 2008, and Democratic majorities in both houses.

The local labor movement isn’t going to wait until then, however. Here in Sacramento, Blue Diamond is increasingly coming under pressure from area political and religious leaders to accede to the union’s demand for card check.

The Sacramento City Council in December voted 6-3 in favor of a resolution expressing “its disappointment with Blue Diamond for waging an aggressive anti-union campaign and violating the National Labor Relations Act.” The council called on the company to enter into a neutrality agreement with the union and to recognize the union if a majority of employees turn in signed union cards.

State Assemblyman Dave Jones, D-Sacramento, also has been a vocal supporter of the Blue Diamond workers, and the union is reaching out to churches and other community organizations to ratchet up pressure on the company—a strategy that worked well in efforts to organize area hotel workers.

And there is another group of workers who might soon see their rights to organize expanded by card check: California farmworkers.

Unlike most private-sector workers who fall almost entirely under federal labor law, state lawmakers have some control over the labor conditions of California agricultural workers. State Senator Carole Migden, D-San Francisco, has introduced Senate Bill 180, which would give card-check rights to agricultural workers. The bill, which has passed both the Assembly and the Senate, is on the governor’s desk.

The United Farmworkers Union figures that about 70 percent of farmworkers in the state are undocumented. It’s tough for those workers to complain to the Agricultural Labor Relations Board when employers intimidate and harass workers, or fire them for union activity. “And here’s another truth about the life of many farmworkers: The state’s heat regulations aren’t working,” Migden told SN&R. “In the year that they’ve been in effect, four more farmworkers have died and none of them worked on farms with a union contract.”

She nonetheless was blasted in Valley newspapers. The Fresno Bee said SB 180 would tilt the playing field in favor of unions. And farmer groups attacked the bill as “taking away workers rights” to a secret ballot.

“Here’s the actual truth: SB 180 would simply give the union the right to employ one more mechanism for unionizing, in addition to the option of secret balloting,” Migden said.

Whether her bill becomes state law or the 2009 Congress enacts EFCA, labor intends to keep pushing the issue. For example, unions tried and failed earlier this year to make card-check recognition in tribal casinos a condition of approving a new gaming compact with California Indian tribes.

“This is the future of the labor movement,” Vega said. “If we’re to have a right to organize that actually means something, card check is going to be the law of the land.”