Rising Above the Odds With the National Labor Relations Board Process
by Cory McCray
A few weeks ago, I had the opportunity to aid the workers of a sub-contractor that Comcast employs. The workers goal was to organize to have a voice at the workplace and obtain a Collective Bargaining Agreement (CBA). On Election Day the final result was 58 Votes No to 40 Votes Yes, with 12 Challenged Votes. How could these results happen if over 65% of the 87 technicians signed authorization cards for representation?
Before discussing the National Labor Relations Board (NLRB) process, I would first like to discuss the campaign. The campaign started when one of the sub-contractor’s former workers decided that he wanted to better the cable industry and strengthen the wages and working conditions. This former worker was able to gather 12 of his co-workers to join a conference call and discuss the issues within the company. The issues within the company were:
1. Wages – The wages have decreased for the workers, since the beginning of the decade. The triple play package, (installation of telephone, internet, and cable) which is something they often referred to, use to gross $80.00 to $90.00, but they were currently receiving half of that ($40.00 to $45.00).
2. Gas – The workers were given a $10.00 stipend each morning for gas. They were currently being charged with filling up the gas tanks past the $10.00. Many other companies have different gas policies, permitting the use of gas cards because they are all W-2 employees, not 1099.
3. Deductions – Workers had funds deducted from their checks without notifications. These deductions ranged from faulty equipment, logging equipment (dispatcher), or administrative error (administration) just to name a few. Once the worker noticed the deduction they could argue their case and then receive a refund check for the deduction. This happened on a regular occurrence and was a very frustrating system for the workers.
4. Performance Pay Rate – Every job was judged and based off of accuracy and efficiency. If the customer of Comcast called the operations office and complained that their cable, telephone, or internet was inoperable, the worker could receive a demotion in his performance rate pay and may not receive pay for the recall job that he was sent out to do. The problem with this system was that even if it was a customer error, they were still penalized.
• What is a customer error?
If the customer moves the station from channel 4, when it is suppose to be on channel 3, than that system can be considered inoperable, but that is a customer error, not a technician error.
5. Hours – Cable technicians work 6 days a week, and sometimes 12 hours a day. Many of the workers were intimidated to ask off on Sunday for personal reasons, in fear of retribution or that they may not have a job on Monday when they returned.
6. Insurance Policy – If a technician was in an “at fault” accident or even a “non at fault” accident, the technician had $1,000.00 deducted from their check. They had to prove they were not at fault in order to halt the deduction, even though these were company trucks, not their own trucks. Some workers only make $800.00/bi weekly, so that may mean their entire check was deducted.
7. Parking Ticket – Technicians utilize a great amount of equipment including pocket tools, meters, extension ladders, and etc. Many of these jobs require them to park close to the job site. If there isn’t any parking available for three or four blocks, sometimes they have to park illegally to drop off the equipment and can acquire parking tickets. The company policy is that the technician is solely responsible for all parking tickets.
These were some of the main issues that the workers organized around. The aforementioned reasons are why over 25% of the 80 plus technicians came out on Sundays at 8pm over a 12 week period to be involved in the Volunteer Organizing Committee (VOC). This is why over 65% of the technicians decided to sign authorization cards for representation. After developing an education for the NLRB process, understanding what Unfair Labor Practices (ULP) are, becoming prepared for company retaliation and intimidation, the VOC decided that it was time to file a petition to have an election.
The election process started off great and the workers were motivated and encouraged that they had organized and unified their forces to have a voice in the workplace and bargain collectively to fix some of the issues. After the first week, the company returned with a vengeance and swift action to break up the VOC’s momentum.
The first action by the company was to water down the bargaining unit. For those familiar with the NLRB process, before an election date is set, a bargaining unit has to be established. This was also discussed at the VOC meetings, so the workers were very aware of the delay tactic that the company would try to utilize in order for the workers to lose momentum and it gives time to intimidate workers. For those that are not familiar with this part, here is a breakdown:
1. If the bargaining unit isn’t established, a hearing date is established 7 – 10 days after the petition is filed.
2. At that time the company can ask for a postponement which buys the company another 7 – 10 days.
3. Next the hearing could possibly begin.
4. After that time the hearing judge will deliver a verdict which could be a few days later.
During this course of time the company delays the election process by fourteen or more days. If they are experienced with the process and brought in a union buster or Lawyer that practices in Union Avoidance, the process just explained would be strongly encouraged.
So now that the VOC understood what they were up against, they had two decisions which were:
A. Accept that the company wanted to add 23 dispatchers, 6 warehouse workers, 4 administrators, and 1 router. Note: All of these positions worked in the office or at the headquarters, and do not have to endure the same conditions that the technicians had to work under.
B. To go to a hearing and face intimidation by the employer, constant captive audience meetings, work place threats, and lose the momentum that they were building as a unified force.
Well, the VOC decided to choose option A because they had more cards signed, then people that were being added, and they were under the assumption that some of the classifications may be sympathetic to their issues, even if it was only two or three workers.
The date was agreed upon, and it was three weeks away. The momentum was building because they felt as though they had just gotten a victory with a 21 day election, instead of the company flexing the use of a 45 day waiting period for the election to happen.
After the election date was set, the Union Avoidance lawyer that the company brought on staff went into full force. They pulled all of the supervisors into a closed door meeting and discussed the strategy for the election. Over the next few weeks, there were captive audience meetings held every day until 48 hours before Election Day. Rumors were spread amongst the workers that the company was going to close down the day after the Union won. One rumor was started that Comcast had a clause in the agreement where if a sub-contractor’s employees unionize, then the contract goes void. The employer immediately started giving out checks for the mistaken deductions and trying to correct their errors. Several employees informed me that there pay rate was bumped up from a C Pay Rate to an A Pay Rate. Another rumor was that if the company closed, the technicians would be able to find jobs with other companies, but the dispatchers would not be able to find jobs as easily. Days before the election, the workers were scared that they were going to lose their jobs, instead of feeling as though their employer was responsible it was now Comcast that mandated the unrealistic policies. Some workers even talked about not voting because they believed or theorized that if they didn’t vote, then the company wouldn’t be able to blame them if the workers were successful in organizing. Even though the momentum was lost with some, the VOC still felt as though they had their core.
During the 21 day period leading up to the election, the company not only used the tricks of rumors, fear, and temporarily correcting their actions, they also transferred five employees that could be “yes” votes to another location and allegedly told those employees that their votes would not count and that they couldn’t vote in the upcoming election. The employees at that other station organized and got 65% of their cards signed and filed a petition to hold an election two days before the first location was scheduled for theirs.
The last ploy of the company was to email the NLRB and let them know that they inadvertently left a name off of the excelsior list. An excelsior list is a list of employees that the company has to submit to the NLRB in order for them to recognize who is eligible to vote in the election. The names are usually submitted with a recognized pay period as a cutoff date.
So, the big day comes, and the workers are ready to vote. The VOC would challenge 6 of the workers, the Router and administrators, on the basis that they held supervisory positions. The company challenged the five workers that they transferred to a new location. The NLRB challenged the 1 worker that was left off of the excelsior sheet, and three other people that would come into the voting facility, but their name wouldn’t appear on the excelsior list. Two out of the five workers that the company transferred were brave enough to exercise their right to participate in the election. One of the supervisors would harass the observer representing the VOC during the election process. Ultimately the VOC would endure a tough, but hard fought loss of 40 people that voted yes, and 58 people that voted no, with 12 challenges.
Following the election, there would be a brave worker that would file an Unfair Labor Practice Charge on the basis of the following:
On or around January 2012, and at all times thereafter, the above-named employer, by its officers, agents and supervisors, by the following conduct and by the other acts and conduct, has interfered with, restrained and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act:
• Soliciting grievances from employees;
• Interrogating employees about their support for the Union;
• Telling employees that the Employer would lose contracts or work if employees voted for the Union;
• Implying that supporting or engaging in activities on behalf of the Union was futile;
• Telling employees that they were not eligible to vote in the election;
• Advising employees to remove union paraphernalia; and
• Intimidating employees because of their support for and activities on behalf of the Union.
The petition for the second location would be extracted, after the company postponed the union determination hearing and the workers viewed the loss from the first location. They were already subjected to captive audience meetings before the organizing drive and NLRB process initiated. In so many words these workers were more fearful than the workers at the first location and decided against having a voice at the workplace and bargaining collectively. They settled for having a job and less employer intimidation.
The reason for this blog wasn’t to have people sympathize for the workers, but to understand that organizers and workers are going to have to work twice as hard to defeat or overcome because the NLRB process is an arduous undertaking. Often times it is hard to find workers that will stand up and risk job loss to confront the injustices against workers. Over time the companies have figured out ways to manipulate the NLRB process without inquiring real penalties that will hold them accountable for their actions. This brings me to the importance of passing legislation such as the Employee Free Choice Act, yes the card check was the important part of the bill, but there were also other critical pieces that should be entertained, such as:
Quicker election dates, instead of 30 – 45 day election dates there should be 7 – 10 day election dates
Tougher fines for companies that commit Unfair Labor Practices, the reason why they commit the offense is because the fines aren’t handed out enough or they aren’t steep enough
First Contract Negotiations would be more obtainable with mandatory arbitration
My advice for my fellow organizers and workers is that sometimes we have to play the cards that we are dealt. I personally know that this is a David versus Goliath story. So make no mistake, we have no opportunity to miss a move or be careless because our industry needs us, workers need us, and America needs us. For corporations and companies that treat their workers unfairly, I would like to leave you with a quote from Elizabeth Warren “There is nobody in this country who got rich on his own. You built a factory out there? Good for you, But I want to be clear: you moved your goods to market on the roads the rest of us paid for; you hired workers the rest of us paid to educate; you were safe in your factory because of police forces and fire forces that the rest of us paid for. You didn’t have to worry that marauding bands would come and seize everything at your factory, and hire someone to protect against this, because of the work the rest of us did. Now look, you built a factory and it turned into something terrific, or a great idea? God bless. Keep a big hunk of it. But part of the underlying social contract is you take a hunk of that and pay forward for the next kid who comes along.”