Today, the right to form a union — one of the fundamental conditions behind the economic progress that created the middle class — is being brazenly trashed. From now on if employees win their union by signing everybody up, the employer gets a do-over from the feds to try again. And, at the same time, the right of workers to organize using e-mail is being gutted. I’m going to discuss both of these appalling developments, which together constitute the continuing war on workers.

FREE SPEECH CURB

In 2000, the president of the union that represents journalists at the Register Guard newspaper in Eugene, Oregon, was fired for sending three e-mails to her members urging them to wear green in a town parade as a sign of support for the union in contract negotiations.

The NLRB has upheld her firing. The board’s Dec. 21 decision — which was vigorously opposed by the two Democratic appointees to the five member board — reverses its own policy set in dozens of cases over the last decade that allowed union members to communicate using e-mail at work. The right of an employer to monitor content and approve what can be communicated trumps freedom of speech in this case.

In 1999, the general counsel of the NLRB, Fred Feinstein, said in a New York Times interview that he considered use of e-mail to be protected activity under the National Labor Relations Act.

He said that e-mail was more like speech — which is protected — and not like literature distribution, which may involve potential trespass and can be more closely regulated. But even passing out flyers supporting the union on the employer’s premises after work hours has been protected since the 1930’s. No more, if the means of communicating involves an employer’s computer systems.

Clearly, given the way people use e-mail today as a form of extended conversation, the NLRB’s new standards approach giving companies the power to regulate speech.

Some members may have read about how temps who work for MTV here in New York City recently organized a walkout. No doubt that organizing was done largely through e-mail. That kind of organizing is threatened now.

ANOTHER ATTACK

Now let’s back up a few months. Once again, we find the NLRB attacking union organizing.

For the last 40 years, unions have won organizing campaigns by soliciting signed statements from workers naming the union as bargaining agent. (This is also called getting union authorization cards.) If the employer agrees to a card check and a majority of workers are signed up, then contract negotiations can begin. The union wins.

But under a new NLRB decision, a union “victory” means the employer gets to try again.

The decision was the UAW vs. the Dana Corporation, which is a big supplier of automotive interiors for all the auto companies.

Here’s the background. When the UAW saw its membership fall from 1.2 million in auto production to just under 700,000 in the 1980’s and 1990’s, it determined that it would organize the supply chain feeding the big three auto manufacturers.

The union already could see that the NLRB union election process was completely corrupted. (Or, as expressed by AFL-CIO President John Sweeney, the process was “kryptonite to workers’ rights.”)

Knowing this, the UAW set out on a strategic campaign to get card check recognition agreements with those companies it was determined to organize.

Card recognition has always been legal and still is. In fact more and more unions were finding success with this organizing tactic. That’s why it has been under attack and why the NLRB majority ruled against the UAW in this case. They are continuing efforts to roll back legal protections for bargaining rights that have been in effect for 40 years. They may slow efforts in the short run, but every indication is that more and more workers want unions, are willing to fight for a union and will eventually turn things around.

The new legal standards and procedures set forth in the Dana decision were written by antiunion business attorneys and simply adopted by the three-man majority of neoconservative appointees. (As usual, the two Democratic appointees were vigorous in their dissent.)

For those members interested in the technical background of the Dana decision, I encourage you to read 802 counsel Harvey Mars’s legal analysis, which appeared in the December issue of Allegro.

WHAT IT MEANS

The political effect of the two NLRB decisions that I’ve written about in this column is a gift to employers of all types, giving them tools to keep unions out.

This gives employers an additional motive to join in opposition to passage of the Employee Free Choice Act, which would change the broken NLRB election system to automatic card check recognition. A very political time for labor lies ahead and is ignored to our peril.