Vermont's Labor Movement 1999

Introduction

This report presents a snapshot of Vermont's labor movement. it includes information on the scope of unionization in Vermont's economy, projected changes in the number and distribution of organized workers, and recent organizing campaigns including labor's tactics. The report also includes an analysis of labor's legislative agenda, its allied political groups, and an assessment of the implications for Vermont's economy of adopting Labor's public policy agenda.

1. Vermont's Union Movement

By far the largest labor organization in Vermont is the AFL-CIO affiliate, the Vermont State Labor Council (VSLC). It claims 20,000 members organized into 78 locals, mainly in the manufacturing and transportation sectors. Tom Belville, executive director of the VSLC, reports that the membership in unions belonging to the Council dropped to 17,000 during the 1980s and early 1990s, but has since grown steadily to the present number. He expects this growth to continue, with efforts currently directed toward organizing public sector employees at the municipal level.

The second largest union in Vermont is the Vermont-National Education Association (VT-NEA), which includes 8,600 primary and secondary public school teachers and educational service employees. The number of VT-NEA members has remained relatively stable in recent years and is limited by the number of schools and their employees.

The third major union in Vermont is the Vermont State Employees Association (VSEA). It currently has about 4,600 members in the executive branch of state government. It has experienced a slight decrease in membership in recent years due to state government leaving positions unfilled and hiring of consultants in place of employees. VSEA is now actively working to organize employees in Vermont's judicial system.

2. The Union Organizing Process

The union organizing process is heavily controlled by the applicable federal law, the National Labor Relations Act of 1935 (NLRA). (In the case of state and municipal government employees, a similar process is controlled by state law and supervised by the state Labor Relations Board.) The NLRA is interpreted and enforced by the National Labor Relations Board.

The NLRA, especially as interpreted by a labor-friendly Board, affords numerous opportunities for one side or the other (usually the union) to claim unfair labor practices and seek regulatory sanctions which tip the balance in its direction. Unions employ skilled attorneys with years of experience to make their case before the Board. Any company facing a union organizing campaign must immediately obtain the services of equally skilled experts to help it present its case against the union, and to avoid technical mistakes which can be extremely costly. Union organizing can be overt or covert. In the former, the union announces its intentions, holds public meetings, encourages employees to sign a petition for representation, and makes public charges against management. One advantage to the union of the overt effort is that management, being aware of the campaign, can sometimes be provoked into making a tactical or legal mistake, resulting in an unfair labor practice charge and subsequent Board order which can tilt the balance in favor of the organizer.

In a covert campaign, the union quietly circulates and collects signed collective bargaining authorization cards from the workers. The process can be very far along before management discovers what is happening. Typically (but subject to many variations), a union begins by identifying a suitable unorganized workplace and building support among its workers. Thoughtless, heavy-handed or arbitrary employee policies on the part of management are an open invitation to union organizing. Union representatives work to befriend the natural leaders among groups of employees and attempt to identify with their concerns. Theinternational unions intensively train these organizers to build individual relationships with the workers, emphasize common interests, and express solidarity and support for their views. They promise that union representation and collective bargaining will lead to improved pay, benefits, and working conditions. They present the union as the ally of worker against management, a basic premise incorporated in national labor policy since the 1930s.

Once the union has succeeded in its organizing drive, these "professional friends" move on to their next organizing campaign. From then on it is the local union Business Agent who deals with employees and speaks for them to management.

Before a workplace can be organized, the union must demonstrate to the NLRB that there is a "showing of interest" among hourly employees of the firm (management and supervisory personnel are excluded by law from bargaining units). The union makes this owing by circulating collective bargaining authorization cards among the employees. Technically, 30% of the covered employees must return signed cards to bring about a union representation election, but in practice the union usually tries to collect ove 50% before moving forward.

The union will often represent to the employee that "signing the card merely means that you want to vote in a representation election". In reality, the card is a legal document that often states that the employee authorizes the union to bargain on the employee's behalf. Signing such a card can instantly make the worker a member of the union. When the union has collected enough signed cards, it will propose to the company that it be recognized as the bargaining agent for the employee group. The union proposes the group to be represented - what will become the bargaining unit - on the basis of its strength among the workers, demonstrated by the cards.

If the company refuses recognition, the union will petition the Board to order a supervised election, conducted by secret ballot. If a majority of those voting choose to organize with the petitioning union, the Board certifies the union, and the companny is obligated to bargain with that union.

There can be heated debates about the composition of the bargaining unit. That unit can be all of the company's employees at a work place, or only a subgroup of those employees. The union will typically seek to have the Board define the bargaining unit as consisting of a group of employees a majority of which will vote for the union.

Typical of a bargaining unit debate was the 1998 battle over organizing Ben & Jerry's employees in St. Albans. The union (International Brotherhood of Electrical Workers) sought to have "maintenance workers", among whom the union had considerable strength, defined as the bargaining unit. The company sought to have the unit defined as all 150 of the employees at the plant, believing that a majority of the larger group would reject union affiliation. The NLRB ruled in favor of the union's proposed unit, nd the maintenance workers subsequently voted to join the union by a vote of 11-8.

During the time that signed card are being collected, the union will often file one or more Unfair Labor Practice charges against management. It does this to show the workers that the union has the power to bring management to the bar of justice. In addition, the union is trying to show the Board that the company is unfairly prejudicing the environment so that a fair election cannot take place. The union then produces the cards signed by employees that say that the union is their authorized bargaining agent, and asks the Board for a "Gissel Bargaining Order" (so named from NLRB v. Gissel Packing Co., 1968). This order basically allows the NLRB to certify the union as the bargaining agent without a vote by the workers. This procedure, once rare, has now become an important union tool for forcing smaller companies to accept unionization. It costs a sizable amount of money to defend against fair Labor Practice charges and to argue against a Bargaining Order. Another recent development in labor law is the increasing use of injunctive relief under Section 10J of the National Labor Relations Act. In theory, this remedy is necessary to keep an employer from taking some action which would undermine the approaching union representation election. Such an action would lead to an Unfair Labor Practice charge by the union, but the Board might take a year or more to make a final determination. During that time the union would not have a fair chance to organize the company.

A typical example occurs when management terminates employees during an organizing campaign. Even if the termination was the result of poor job performance, union attorneys will file Unfair Labor Practice charges against the firm. While the Board is investigating the charges, the union will appeal to the NLRB field examiner to seek a 10J injunction on its behalf. Under the injunction, a Federal District Court requires the employer to rehire the dismissed employees until the Board adjudicates the charge, thus putting the union back in business.

This is a powerful tool for the union. If the union wins its request for the injunction, the union can claim that it "forced" the employer to rehire an "unfairly" terminated employee. This can give the union a tremendous public relations victory. In addition, the injunction gives the union enormous bargaining leverage, especially against small employers.

The cost to an employer to mount a legal defense in a 10J proceeding can be substantial. The union incurs no cost since an NLRB attorney presents the union's case in court at taxpayer's expense. NLRB Field Attorneys now regularly threaten to initiate Gisse1 proceedings in order to help unions win concessions from companies defending against Unfair Labor Practice charges.

From the standpoint of management, coping with a union organizing campaign can be a complex, expensive, and even life-threatening for the company. The increased use of Gissel Bargaining Orders and 10J injunctions illustrates the growing trend of unions sing legal maneuvering, as opposed to traditional on-the-ground appeals to the employees, to achieve their organizing goal. Affected companies will quickly find out that the National Labor Relations Board is not employer-friendly. Companies that are responsive to employee concerns, make early use of expert assistance, and train their supervisors in responding to union tactics will fare much better in organizing campaigns and spend less money than those who do not.

3. Recent Labor Organizing in Vermont

The major organizing effort in 1998 focused on hospital personnel. Unions launched drives to organize nurses at Rutland Regional Medical Center (Rutland), Fletcher-Allen Medical Center (Burlington), and Copley General Hospital (Morrisville).

In early 1997 the management of Rutland Regional Medical Center learned of the circulation of collective bargaining authorization cards among nurses. An NLRB-supervised election was held on June 3, 1998. The vote among the 328 nurses was 158-151 to unionize with Local 6 of the Office and Professional Employees International Union, based in Quincy, Massachusetts.

In April 1997 nurses at Copley General Hospital voted to organize with the Federation of Nurses and Health Professionals, a branch of the American Federation of Teachers. When bargaining broke down on April 30, 1998, union nurses went out on strike. Hospital management held firm and hired temporary replacement workers. On May 29 the striking workers agreed to accept the hospital's offer and returned to work.

A campaign by the same union to organize the 1200 nurses of Fletcher Allen began in early 1997. The campaign was stimulated when the hospital management brought in an outside consultant to make cost-cutting recommendations. Many of these recommendation were rather ruthlessly implemented, to the detriment of nurses whose views were largely neglected in the restructuring program. Most observers believe the union would have won a vote if undertaken at that point. However, the union delayed the vote until October 8, 1998. By that time interim Administrator William Gilbert, who had become the focus of the nurses' discontent, had departed. The nurses voted not to organize by a margin of 567-423. Unless Fletcher Allen's new management makes major improvements in its labor relations, a second vote will probably be taken in 1999.

Other union organizing targets for 1999 include municipal government work forces, temporary workers, and employees of the Judicial branch of state government.

Temporary workers are proving to be a growing component of Vermont's labor force. Temp work provides useful employment to people who cannot or do not care to accept regular full time employment. It also solves problems for companies experiencing temporarily increased work loads or needing special skills on a part time basis. By keeping the number of regular employees below 50, companies escape the requirements of the Family and Medical Leave Act, and by keeping the number below 25 the company escapes some federal anti-discrimination laws.

The temp market has been under fire from unions because they feel that the availability of temps, who typically do not enjoy the fringe benefits of steady workers, is undercutting employment opportunities for full time workers. The ready availability o temps also discourages workers from demanding better pay and working conditions, or organizing. A large temp labor force can also provide strike breakers.

Unionization of temps has been thwarted so far by a NLRB ruling that the only bargaining unit available to temps is the temp agency itself, not the company for which the temps actually work. Since a unionized temp agency would no longer be competitive, ecause of the higher pay and benefits demanded by the union, it would soon be forced out of business as client companies turned elsewhere for workers.

With direct union organizing difficult or impossible, labor activists have turned to forcing the client company, through public pressure and civil disobedience, to insist on higher-benefit contracts with subcontracted or temp workers. Activists in Massachusetts have promoted legislation to require that temps receive the same pay and benefits as regular workers. These tactics avoid the lengthy formalized process of unionization, and instead use "social movement tactics" ("street heat") to force companies to capitulate.

The VSEA is in the process of organizing the Judicial branch of state government, pursuant to a statute enacted in 1998 (Act 92). The Court Administrator's office ("management") faces a dilemma. On one hand, unionization would make court administration more difficult and expensive. On the other hand, defending against a union organizing campaign would put the Court Administrator in a weak political position, since there is considerable pro-union sentiment among the Justices and many influential legislators. It thus seems likely that the Judiciary will soon be organized without serious opposition, whenever VSEA decides the time is ripe.

4. Vermont Labor's Legislative Agenda

Vermont State Labor Council

All major unions in Vermont invest much time and energy in lobbying the legislature on behalf of their agendas. Specific policy measures either benefit the unions directly, or indirectly, by helping workers who will then support the unions. Several independent lobbying groups often work with Labor to achieve common objectives.

VSLC's 1998 legislative report was published in the June issue of their newsletter, Labor's Voice. In the report, VSLC lobbyist Michael Sirotkin (of Mickenberg, Dunn, Sirotkin & Dorsch) reviewed nine bills. H. 213 would have prohibited organized municipal workers from striking, and instead required binding arbitration to settle contract disputes between municipalities and employees. The bill passed the House but was not acted upon in the Senate despite the support of Gov. Dean. H. 243 would have greatly expanded the benefits available to workers under Vermont's Worker Compensation program. Additions would have included vocational rehabilitation, to retrain injured workers unable to return to their previous work, and compensation for health benefits lost while an injured employee is unable to work. The bill did not pass either chamber, but provisions to allow the Commissioner of Labor and Industry to require workers comp carriers to conduct workplace safety inspections and to cense vocational rehabilitation counselors were incorporated into H.704 (Act 140).

H. 315 increased the maximum weekly unemployment benefit from $225 to $275. VSLC estimates that this would increase total unemployment disbursements by $3 million a year. The bill passed and became Act 101. H. 704 increased the allowed amount that can be required from insurance companies as compensation for attorney's fees in successfully contested workers compensation cases. It became Act 140.

S. 130 required employers to provide "reasonable" bathroom and meal breaks for all employees. VSLC did not actively lobby for this bill, but Sirotkin did call for it to be strengthened to include minimum time requirements and stronger enforcement measures. The bill became Act 115. H. 761 was the FY 99 capital construction bill. Labor successfully lobbied for the inclusion of a "Little Davis-Bacon" provision requiring that all state-funded construction projects (except for state highways and forest, parks and recreation) pay the prevailing wage by trade to all workers. Even though VSLC did not succeed in extending the requirement to local government projects partially funded by the state, passage of this provision was a major victory for the building and construction trade unions and a corresponding setback for taxpayers footing the bills. The enacted provision is 29 VSA 161(b). S. 226 would have allowed home workers to be classified as independent contractors, instead of employees. VSLC strongly opposed this bill, which it called the "sweatshop" bill. It passed the Senate but died in the House.

H. 755, the FY 99 general fund appropriations bill, included a section providing for hiring of additional staff for the Wage & Hour Division of the Department of Labor. This provision was strongly endorsed by VSLC, which relies on the state to police labor law violations by business. VSLC urged expansion of the Division's ability to handle worker complaints and grievances. (Act 147).

H. 177 required employers to grant employees access to confidential personnel files. After several Senate amendments, the two chambers were unable to agree, and the bill died at the end of the session. Other labor bills not discussed in the report included the strikebreaker bill (H. 76, requiring employers who hired replacement workers during a strike to fire them and hire the strikers back when the strike is over), and a worker's comp bill allowing an injured worker not only to receive the insurance benefits from the workers comp system, but also to sue the employer for even more, even though the purpose of workers comp is to eliminate such lawsuits for on-the-job injuries.). Labor always supports increases in the state minimum wage, the latest of which was mandated in 1997 (Act 4, to $5.25 an hour).

Vermont State Employee Association

The VSEA 1998 legislative report was prepared by lobbyists Annie Noonan and Nicole Dewing.

Foremost on VSEA's agenda was H. 610, a bill to restrict privatization of state services. Under H. 610 any firm entering into a privatization contract with the state must pay workers at least the starting wage of equivalent state employees, must engage in affirmative action, and must have a clean record of compliance with all federal and state regulations regarding labor relations, occupational safety and health, nondiscrimination and affirmative action, environmental protection and conflicts of interest. Though H. 610 did not pass either chamber in the 1998 session, it did lead to the establishment by the Governor of a Blue Ribbon Commission on State Government Performance and Work Force Needs, to evaluate the extent of privatization already in place and to make recommendations on future policies.

H. 220 brought non-managerial employees of the Defender General under the state employee relations act, and created a Judiciary Employees Labor Relations Act to provide for collective bargaining by judicial branch employees. This bill, strongly support by VSEA, became Act 92. H. 743 authorized up to $100,000 for a study of the classification system by the Commissioner of Personnel. The study is to focus on whether advancements in technology necessitate revision of the system by which state employees are assigned jobs, and to evaluate whether the system contains any gender or other biases. The study results are to be presented to the 1999 general assembly (Act 141).

VSEA lobbyists also pushed budget provisions to delay the closing of the Dale 3 state mental health facility, and succeeded in securing the adoption of some restrictive provisions.

VSEA supported H. 309 (Act 89) which merged group B of the state police retirement system into group C. this increases the survivor benefits available to spouses and children of state troopers previously covered under Group B. A corresponding increase in required contributions by troopers to the state employees retirement system was required to keep the change revenue neutral.

VSEA lobbied for S. 2540 (Act 152), designating corrections officers as law enforcement officers, and thus increasing their early retirement benefits. Another bill pushed by VSEA was S. 150 (Act 150) which doubled fines for speeding violations in construction zones. H. 163, the Consumer Managed Health Care Act, contained two provisions of concern to state employees. The first created an external review panel that allows consumers to appeal major medical decisions made by their insurer. The second created an independent ombudsman program to assist consumers in choosing health plans. The bill became Act 159. VSEA supported a provision in S. 185 (Act 117) which authorized and appropriated funds to hire 16 new state troopers to help enforce the newly expanded DUI law.

Vermont-National Education Association

The Vermont chapter of the NEA reviewed legislative action in its June 1998 Vermont NEA Today. VT-NEA lobbyists are Angelo Dorta, Perry Casick, Ellen David-Friedman, and Joel Cook.

Ostensibly neutral toward Act 60, the sweeping education finance act of 1997, VT-NEA lobbyist Cook does acknowledge that this act will have a major impact on VT-NEA members. During the process of enacting Act 60 and Act 71, VT-NEA was alert to ensure that its members' jobs were protected.

H. 475 required criminal records checks for all prospective teachers. Aimed at preventing child molesters from becoming teachers, this law mandates, instead of allows, that the commissioner and superintendents conduct such checks.

VT-NEA worked hard for H. 503 (Act 68), which increased the minimum annual retirement benefit for teachers from $4550 to $6600. VT-NEA was unsuccessful in its efforts to get an early retirement incentive plan passed to compensate teachers put out of work by Act 60-related school budget cuts. Critical of Gov. Dean's plan, VT-NEA was unable to get legislators to consider a more generously funded version when the projected teacher layoffs failed to materialize.

VT-NEA resisted moves to transfer funding for the teachers retirement plan from the state general fund to the education fund under act 60. VT-NEA was intensely concerned with proposals for parental choice in education. Act 71 required the state board of education to develop a plan for public high school choice in cooperation with VT-NEA and other education organizations. VT-NEA president

Dorta has endorsed public school choice in principle, but his union is adamantly opposed to any parental choice plan that would allow parents to choose independent (non-unionized) schools for their children. Nationally, the NEA has been vociferously hostile to parental choice.

5. Labor's Political Allies

The three major Labor groups can count on the support of several other groups which share all or most of Labor's objectives.

Chief among them is the Vermont Public Interest Research Group (VPIRG), which claims 23,000 members and has three paid lobbyists. VPIRG supports single payer health insurance and benefits for displaced workers under electric deregulation, as well as virtually every other liberal cause. Rural Vermont, headed by long time left wing activist Anthony Pollina, presents itself as a voice for farmers and rural residents. Its main cause in recent years has been government management of the dairy industry and creation of the Northeast Interstate Dairy Compact. Rural Vermont supports every liberal and labor cause including single payer health care and the Livable Wage campaign.

The Livable Wage Campaign is the major project of the Peace and Justice Center of Burlington. In a series of well-researched reports called the Vermont Job Gap Study, PJC has argued for increasing wages paid to workers to a level deemed "livable", depending on family size. The official goal of the Livable Wage Campaign is to develop policies which will encourage the creation of jobs which pay enough to cover all of a family's need plus taxes, adjusted for family size, number of wage earners, and geographic location. For a two parent family of four with one male wage earner in rural Vermont, PJC calculates the required livable wage as $14.94 per hour, corresponding to $31,082 per year. The Livable Wage Campaign seeks to require governments and businesses to pay higher wages, although it has not shown any concern for lowering taxes and regulatory burdens which impact business viability. It argues that the increased tax revenues and reduced transfer payments that would result from raising the minimum wage to $8.10 per hour would create a $24 million windfall for the state and a $122 million cost to businesses. PJC discounts the negative effects of higher prices and loss of jobs that would result, emphasizing instead the presumed social and fiscal (for the state) benefits.

The Livable Wage Campaign enjoys the support of Vermont Businesses for Social Responsibility, which plans to publish a book on how local businesses can create livable wage jobs. The Campaign is enthusiastically supported by Rep. Bernie Sanders and the Progressive Coalition.

Another group consistently supportive of labor's views is the Vermont Low Income Advocacy Council (VLIAC), created by the state's community action agencies supposedly to represent the views of lower-income Vermonters. VLIAC's commitment to liberal causes was illustrated in 1989, when it supported Rural Vermont in advocating creation of the New England Interstate Dairy Compact, despite the fact that higher milk prices would adversely impact lower income Vermonters.

6. Labor's Political Activity

Both the member unions of the VSLC and the VT-NEA have been very active politically. Support for candidates has taken the form of manpower to staff phone banks, do mailings to union households, and provide all forms of campaign support. These unions have Political Action Committees that contribute funds to candidates, but the amounts to any one candidate are limited to $2000.

VSEA has traditionally stayed clear of working for candidates. Candidates are often invited to speak at VSEA state and regional meetings, but VSEA has traditionally not endorsed candidates or contributed to campaigns. In 1998 VSEA took a major step into expanded political activity by creating its own PAC. Although it raised less than $1000 in its first solicitation, it seems likely that it will soon be as politically involved as the other two labor organizations.

7. Labor's Policy Agenda: The Implications

In a free society every group is entitled to organize, advocate, and lobby for its views. Based on what the Vermont Labor movement is advocating, here is what Vermont's economy would likely look like once Labor's prescriptions have been enacted.

• A government-run and taxpayer-financed health care monopoly, by adoption of a single payer health care system
• A sharp increase in costly employment mandates on private businesses, including expanded paid leave, required prevailing wages and benefits for temps, firing of strikebreakers after a strike, government regulation of working conditions, and extremely generous workers comp and unemployment insurance benefits.
• Higher taxpayer-paid employment and retirement benefits for government employees, and the employees of government contractors.
• Mandatory binding arbitration in labor disputes.
• Ever-higher minimum wages, plus enactment of mandatory "livable wages" of as much as $14 per hour.
• Prohibition of the use of public funds for any parental choice of non-unionized schools for their children.
• Severe limitations on state and local government privatization and "contracting out", to limit such practices to major (unionized) construction projects paying prevailing wages.
• Prohibition of persons working at home and marketing their wares through a company, unless government-prescribed wages and benefits are paid.
• Mandated generous compensation to workers who lose jobs due to electric deregulation, and increased restrictions on layoffs of all kinds.
• Strong restrictions on the use of temporary employees, to eliminate any cost advantage they might enjoy over regular employees.

It seems clear that an economy operating by these rules would succeed only to the extent that it was isolated from the national and international economies, for with this burden of cost and regulations its businesses could scarcely hope to succeed in a competitive marketplace. Even for those businesses which do not now face cross-border competition, prices would claim more of the income of their customers, thus encouraging cross-border and mail order purchase. Finally, the decline in business profits would negatively impact the state's own tax revenues, with unpredictable consequences.

This report was based on the work of Ethan Allen Institute 1998 intern James Chappelow of Essex, now a senior at Auburn University majoring in economics. Expert advice on the section on labor organizing was given by Fred B. Grubb SPHR, the Managing Director of the TWG Consulting Group located in Burlington. His seminar on "Protecting Your Employees' Right to Choose" has been delivered to companies all over the country. Mr. Grubb is also a director of the Ethan Allen Institute.

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