The Dark Side of Works Councils in Germany

DSCN1461Aachen   In the morning and later in the evening, I got a short course on how unions worked in Germany from organizers, staff and leaders at Ver.di, who met with me at their regional headquarters in Dusseldorf. The television screen in their meeting complex might have been translated as if I was giving a training session, but at many times I was being schooled more than they in the basics of how unions worked and the challenges they face in Germany.

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I’ve certainly heard about “works’ councils” for years and even met representatives of such councils from time to time in various delegations or when groups have visited New Orleans or so forth. The perspective from the ground floor where organizers’ work, repeatedly established that when there was a conflict between the theory of workers’ input at the council level within a firm and the reality of whether or not workers could make change or build power through a council, the theory was crushed and thrown out of the window by the crushing weight of the reality. At lunch without as many of the other folks listening, in somewhat of a silent sacrilege, two members of the key regional organizing team asked me what I might advise on how to deal with a work council when they were as much of an issue as the management.

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Certainly in the USA, we can read op-eds and news stories from the corporate point of view that hold works councils as little more than a German artifice that got in the way of what company’s wanted to do. All of which, almost by default, led me to believe they were likely a good thing. Hearing from both organizers and works council members was an education. Councils are basically a meet-and-confer operation with elected leaders in the work place about non-economic terms and conditions of employment. In Germany every business of a certain size and employment is required to establish such a council. On the one hand organizers were finding them an obstacle in organizing because they were often entrenched with unaccountable leadership. In organizing they would initially begin by trying to convince the works council members that a union was a good thing and there should be cooperation and assistance, but often they would find the union had to either organize to take the council over, elect new members, or go around the council, none of which are easy tasks and all of which took time, energy and resources. Councils are elected to four year terms, so if a union is organized in a firm and comes in after the last election, if could be that many years before there’s a chance to deal with them accountably, and that’s a job hard to handle.

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Talking to leaders at works councils at American Apparel retail stores and Home Depot stores, they were unhappy for other reasons. At Los Angeles-based American Apparel, they were hanging in and hanging tough despite the fact that the company was in Chapter 11 reorganization. They felt like they couldn’t get any information or analysis they needed from the company or their American manager. At Home Depot, they felt a union drive and campaign were needed, but troubled about what role they could play. Others were concerned about their powerlessness in dealing with subcontracting and joint employer situations in German law and were critical about whether the union was doing enough to get ahead of these problems either.

Jeffrey Raffo on the right

Jeffrey Raffo on the right

The Rhine-Ruhr valley is at the heartland of labor’s strength in Germany, where unions are still a key part of the economic order. Ver.di is attempting to innovate in organizing and in fact that’s part of how I got to Dusseldorf, because the leader of the newly created organizing team, Jeffrey Raffo, was interested in participating in a dialogue about how community organizing methodology melded with labor organizing technique to create a strong, amalgam of organization. Nonetheless, they all nodded that German unions were also getting weaker, even if not as weak as those in the USA, and works councils were clearly not enough to provide workers protections in the absence of strong unions.

 

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Making Decisions “On the River”

ReAct makes decisions "on the river"

ReAct makes decisions “on the river”

Budapest    Back to the category of “new tricks for old dogs,” before I forget I wanted to share a method the French organizers used in order to try to resolve difficult decisions and see if they could achieve consensus before abandoning all hope. We were meeting on the board of ReAct, the transnational organization partnered with ACORN internationally, with the Alliance in France, and the main vehicle they have used for anti-corporate and global work, especially in Francophone Africa. As part of the partnership, I had joined the board of ReAct, so this was my first meeting.

There was a debate on whether or not ReAct should enter into a contract with a small, sectarian and perhaps anarchist local union in Lyon, France to assist them in increasing their membership in the hotel sector. The proposed contract was relatively short term at perhaps six months, but there were concerns by many board members on many issues ranging from whether or not there were reputational issues in working with this local union that might endanger other union relationships to whether or not there was “mission drift” from ReAct in moving from a more global orientation to one that focused on France. There were also issues that concerned me about the impact on the Alliance Citoyenne, ACORN’s affiliate in France, and whether it would impact any expansion of the Alliance to Lyon, a significant city in our French expansion plans in close proximity to our powerhouse in Grenoble.

After lengthy debate, suddenly the chair called for everyone to stand up and move to another part of the room to try to resolve this “on the river,” as they called it. The river was a dividing line, and everyone started on one “bank” of the river, a division of sides obviously, and then after more discussion was asked whether they had already determined which side of the river they stood on. Those already in favor of the proposition moved over to the other bank. Some, and I was one, were on one bank with one foot, so to speak, still in the water. The chair would then ask people on the other side if there were specific conditions that they could articulate, that if met, would allow them to comfortably cross the river. Different people articulated different concerns. One attached a condition, easily met, that the work would align with the Alliance, so once assured, she moved over, and I got my feet out of the water as well. Another offered the condition that the work with this union only occur in hotels where there were not members of other unions. They agreed to that readily as well, though I think that condition may be impossible to meet, and another one crossed the river, and so on.

Our organizer from Rome, watching the proceeding, was aghast. He found it to be gross “manipulation” and a forced consensus. The head organizer from Canada was intrigued and thought she might try it in certain situations where nothing else might work.

There was no doubt that it was a directed decision, but at the same time it was somewhat ingenious in not allowing consensus to be blocked and moving to a decision one way or another. It would be an interesting tool to try on harder questions where management, or in this case the chair of the meeting, was not so invested in the outcome of the decision, but this is a good technique worth trying.

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Does the New Overtime Rule Really Affect Nonprofits and Organizers?

overtimeNew Orleans     Randy Shaw, the executive director of the Tenderloin Housing Clinic and its burgeoning empire, first challenged me to think about whether the new FLSA overtime guidelines would prevent any future prospects of building a farmworkers’ movement or an ACORN, both of which famously focused on building an army of volunteer and professional organizers working “long hours at low pay,” as ACORN advertised for years. The new overtime rules, long overdue, as more and more people are realizing, double the level of eligibility for overtime from a 2004-floor of a bit over $23,000 per year to the mid-$47000 range. On organizing programs that are not easily shoehorned into a 40-hour grid, such a jump seems like a huge budget buster and dream crusher. Both the US Public Interest Research Group, the Nader-created group of researchers and students, and Judicial Watch on the right had both expressed fears of the new rules impact and how it would hurt their work.

Looking into this all more carefully and going back to the basics, I remembered our many tussles with the fine men and women of the Department of Labor’s Wage and Hour Division, an understaffed and overworked group, I mean this seriously, the likes of which has few parallels in government. At different times we were able to establish organizers as discretionary employees and therefore properly salaried, which still maintains. I also remembered once on a Local 100 review shaking the investigators hand as he left, having concluded in the mid-1980s that we were not involved in sufficient interstate commerce. To make the story shorter, I finally shook myself back from my stupor and went back to the basics.

At one level, the gross expenditures to establish coverage under the Fair Labor Standards Act (FLSA) is $500,000, so a huge number of nonprofits in general and organizing efforts in specific are far under that number and face years of work to have any worries in this regard. More importantly, a DOL Wage & Hours circular dated as recently as August 2015 reminds one and all that nonprofit organizations existing for charitable, education, and similar purposes are in fact exempt from coverage of the FLSA and that this is a long settled matter in the courts as well. The circular importantly for membership-based organizations like ACORN and the original UFWOC, says that dues, gifts, donations, and the like are NOT counted at establishing the gross revenues, and in ACORN’s case those were the revenues period. Furthermore, the coverage threshold is established by commercial activity, and the DOL is clear that a nonprofit can also separate out the workers and revenue involved in any sales or commercial work so that only those workers are under the FLSA. The same separation can be done for any individual staff involved in regular interstate commerce like phone calls and travel between states.

So, why did ACORN worry about these issues for its organizers? First, ACORN was a complicated organization as any look at the more than 130 “banned by Congress” list would establish, yet we operated under one organization-wide salary and seniority schedule, so the mix-and-match would have diluted that solidarity of mission and commitment. Secondly, we were involved in hundreds of living wage fights, and the “optics” were sometimes issues, including the one legal test where we challenged the coverage in California. It was easier to raise the minimum of our scale in 2004 at the last FLSA adjustment on overtime to over the threshold and more clearly differentiate hours for non-field staff. Nonetheless, that doesn’t change the fact that we believed under the FLSA, like all other similarly situated nonprofits that we were legally exempt, and we threw in arguments over freedom of speech and association into the mix as well.

Why are the US PIRG and Judicial Watch worried? Obviously, I can’t be sure. The PIRGs contract a lot of their fundraising to a for-profit, which may have been part of their concern. Judicial Watch is a unit of other conservative operations to the best of my knowledge, so there might be issues that are not immediately obvious. For the most part though, if they were willing to take the heat, they could still cook the same way even in the new kitchen.

So in short, yes, a farmworkers movement could be built again under FLSA with the additional argument I believe still exists that all of its $5 per day and room and board were volunteers under the FLSA guidance, and an ACORN could also be organized again. The obstacles to doing so are many and mountainous, but they are not the FLSA or the new overtime rules.

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Union-backed Walmart and McDonalds’ Campaigns Face Uncertain Futures

DSC_6745New Orleans    The emperor with no clothes is not a pretty sight, and it’s almost as bad when the finger pointing at him is Dave Jamieson, a labor reporter for the Huffington Post in a piece entitled “Labor Groups are Taking on Walmart and McDonalds. But Who Will Fund the Fight?” I don’t have anything against him or the Huff Post, but this was a story we knew would be coming, the only surprise might be that it took so long to get here, and it still seems to catch us unprepared with our pants around our ankles.

The trigger for this tale is the annual meeting of Walmart gearing up in Bentonville, which has also become an annual action by organizations trying to force one of the world’s largest retailers to more accountability and better practices and standards for its workers. This year OUR Walmart is once again on the scene, but now divorced from its supporter and financier, the United Food and Commercial Workers (UFCW) union and trying to go on its own. A decade ago, UFCW did much the same thing with a competing effort called WakeUp Walmart not so much as to organize but to keep their brand and jurisdictional claims alive and compete with the SEIU-backed WalmartWatch and the multi-union effort we ran to prove that Walmart workers could be organized in Florida and to establish that we could stop their expansion with aggressive work and community allies both in the US and India. New leadership at UFCW jettisoned the program support for OUR Walmart leaving them trying to keep the flame alive, all of which seems terribly reminiscent of our earlier efforts.

Jamieson asks the simple question no one likes to hear in public about the viability of OUR Walmart and the sustainability of its effort without a deep-pocketed sponsor. He raises the same question about the multi-year expenditure that SEIU has made to organize McDonalds in companion with its support of the Fight for $15 campaign. SEIU has been resolute in its commitment to these efforts. Both campaigns can claim significant victories. Walmart did move on wages at the bottom. Not to $15 per hour but up to $10 across the board at a cost of billions. SEIU has seen dividends from its Fight for $15 in cities like Seattle and Los Angeles and in states like California and New York where it has significant membership, so they can claim some success from their advocacy. McDonalds does not seem to have moved any closer to the union than Walmart has moved towards UFCW, though closer observers with better information than I have claim that SEIU’s strategy is global, is sound, and may still yield significant organizational victories as well.

And, that’s the rub. Unions are not foundations. They have to eventually see members and dues or some direct benefit from the expenditure of dues or the reaction will be predictable, just as is was with UFCW’s leadership change. And, when it comes to funding, foundations are not a substitute for workers and their dues or workers and their unions. Foundations will shine a bright penny for a minute, but they will never double down to the level needed to get to scale in fighting giant enterprises like either of these companies.

Can OUR Walmart create a real workers’ movement at the giant retailer with a strategy that produces sufficient organization and membership that will finance a long struggle? It’s possible, we proved that in Florida, but that’s a 10, 20 or 30 year project, and would represent the life work and sacrifice of many to survive, and, even surviving, would, having proven the concept, still need support at some point to get to scale. The same transition will need to occur in the McDonalds’ campaign, but hopefully with the continuity of SEIU’s support and assistance.

No one else is going to finance these struggles without workers carrying a huge part of the weight. The publicity is great, but smoke and mirrors is not organizing. David Rolf of SEIU’s big Washington State local, was quoted as saying, “The old model has failed several generations … We should encourage these experiments, but we shouldn’t romanticize it. We still haven’t figured this out.” Certainly, he’s right, but his remarks must seem gratuitous to organizers and workers deep in the struggle. OUR Walmart has proven that the day of reckoning for such experiments comes quickly, so the time for figuring it all out for all of these organizing projects remains now, before it’s too late.

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Please enjoy Beck’s Wow. Thanks to KABF.

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Brits and Texans Agree – Attack Unions Where it Hurts – Dues Collection

union-yes-logoNew Orleans  Conservatives of all stripes and nationalities seem to have settled on a killer app for delivering a death blow to unions: block the dues collection mechanism!

Short memories will recall that earlier this year there were fierce legislative battles in Missouri, Oklahoma, Texas and elsewhere whose sole objective was to eliminate the ability of public employees to have their dues paid to unions or employee associations through payroll deductions from their checks. The legislation state by state was almost identical with small adjustments place to place only in severity and breadth. Some states exempted no public employees from state to municipal to schools. Others were more selective, like Texas, and tried to favor certain employee groups like police and fire. Most of the legislation was cranked out on the Koch brothers’ ALEC template. The objective was transparent: cripple unions.

Unions and their allies were both good and lucky in the 2015 legislative sessions and managed to block passage of most of these Wisconsin-wannabe measures. It’s not clear how long the streak can continue. The Texas Tribune reports that Texas Lieutenant-Governor Dan Patrick has already started loading up the big guns on this bill for the 2017 session, partially by making it an election primary issue for the committee chair that in his view botched the process preventing the bill from emerging for a vote in the recent session. Patrick is assigning the bill to committees in advance of the session so that it is stripped of any problems. Even the favored few public employee groups that escaped elimination last year seem likely to be on the chopping block in the coming bill. It’s a heckuva a way to build solidarity in the house of labor, although that may not be enough to save us.

The problem is that the Republicans hold the whip hand in Texas and many other southern and border states coming perilously close to the kind of daunting, no holds barred, no prisoners taken one-party rule that can be found in parliamentary government elsewhere. The recent victory of the Conservative Party in the United Kingdom giving them majorities rather than a coalition government, has led them to propose amendments to the Trade Union Act that would eliminate all payroll dues deductions for any public employee group, hoping to decimate the membership of the largely public workers’ union, Unison, and other unions with public members that have long been the backbone of the Labour Party. There will be little that can stand in their way, and state by state we are facing a similar challenge in the United States now.

In Texas they are clear. This has little to do with the workers and whether they need or want union representation on the job. Proponents like the Lieutenant-Governor and his allies are clear this is all about making sure that unions have a depleted treasury and will be limited in the amount that they can donate politically to their opponents. It’s all about running the well dry. Workers and their unions are collateral, ideological damage standing in the way of naked political self-interest.

The clock is ticking for unions and even with Herculean efforts the damage will be extensive.

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A Demand for Old School Union Reps: Arbitrations!

arbitrationNew Orleans  The New York Times has run a three-part series on the galloping trend of corporations, both large and small, overtly or slyly forcing consumers and even non-union workers to agree to arbitration procedures that block their access to courts and to joining with others in class action litigation on larger concerns. The stories are horrendous and unsurprisingly expensive, and thousands of words later there is no mystery to the bottom line that the deck is totally stacked for the corporations. Law school professors referred to the movement to arbitrations as the “privatization of the justice system.” And, like so much in our neoliberal world, too often it is the consumer bringing the complaint that ends up paying for the process rather than the company which is already saving money in legal fees and settlements that they would have incurred in courtroom proceedings.

Obviously this trend to excessive arbitration needs to be stopped, but in the classic way that an individual problem seems personal, rather than political, and given the corporate influence in converting so much of government into crony capitalism, it is hard to believe the Calvary is coming or that relief will make it to us soon. This level of rampant injustice speaks to a huge gap in accessible and affordable representation in these kinds of civil procedures where formal legal training and licensing is not required. There is a subset of the labor movement that might be able to meet some of this huge demand though. For all of the decades long battle to move the labor movement to an organizing culture, the “servicing” model still has huge and deep support and a generation of union staff that lived through the process has extensive experience in handling arbitrations, and that’s old school union reps. Where are they now that we really need them?

There are few local union staffers that have spent more than a year or two in service to the membership that have not been schooled in the hard knocks experience of written grievance procedures up to the point of formal arbitration hearings. Picking arbitrators, writing up the paperwork, preparing to argue the case with the member, and negotiating the settlement when one is available are all core skills that virtually all union reps have been forced to acquire. Most learn to do anything that they can to avoid arbitration because of the time and expense, but for many there is no choice and invariably arbitration can’t be avoided. To dissuade filings of job discrimination complaints, including by gender and race, the United Kingdom now requires the grievant to pay 1200 pounds or about $1500 to even file. The cost for unions like Unite, the largest in the UK, has been about 9 million pounds per year, since they pay the cost for their members, effectively reducing the income they have for anything else. A big union like SEIU’s 32BJ in New York does 2500 arbitrations annually with three arbitrators conducting hearing virtually five days a week. My point is simple: unions may not like arbitrations, but they know them like they know the back of their hand.

Is there a way to use all of that residual skill to fill the gap for tens of thousands that are caught in a bewildering process with the odds stacked against them and lawyers out of their price range? I would think training legal advocates and putting out the call for old school union reps with time on their hands and these skills in their heads, might be something worth all of us coming together to try and organize. God knows it’s needed!

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