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Clarifying an Essential Labor-Management Issue

By Msgr. George G. Higgins

The Yardstick
November 8, 1999
 Paul C. Weiler of the Harvard University Law School is acknowledged universally by academic peers and practitioners in the field of labor-management relations as a leading U.S. expert on labor law and labor-law reform. Thus, I read with special interest in recent days an exhaustive paper summarizing his views titled "A Principled Reshaping of American Labor Law for the 21st Century" -- one of the best papers of its kind I've read in recent years.

Of the many contested issues covered in Weiler's paper, one particularly will interest those following the prolonged dispute over hospital administrators' use of outside management consultants, some of whom are anti-union. Controversy over this issue is at the heart of the ongoing dispute between the Service Employees International Union and a number of Catholic hospitals affiliated with Catholic Healthcare West.

Weiler takes it as a given that independent union representation (preferably across entire industries) serves as a valuable check and balance in the labor market's workings. The trouble is that millions of American workers who have indicated in impartial scientific surveys that they want union representation are being denied the right to organize because of employer opposition as well as inadequate legal protection of this fundamental right and inadequate legal sanctions against the intimidating tactics of many employers.

Weiler, after discussing various remedies, concludes that "the most crucial feature of labor-law reform is replacing protracted by promptly held elections. The way to do this is to tell unions that in order to be certified as a bargaining agent they must sign up more than a majority ... of the affected employees. When the union has provided those clearly written and signed representation forms, the National Labor Relations Board should conduct the election within the next week or so."

Weiler says the major counterargument by employers is that they are denied what should be their equal right to campaign for the employee voters' allegiance. He says this is considered the equivalent of a political election allowing Democrats, but not Republicans, to campaign effectively for support.

For Weiler, the fallacy of this analogy is clear. He says, for example, that we never would dream of suggesting that under corporate law, employees should have the same full-blown rights as shareholders to campaign and/or vote about proposed corporate mergers and downsizing policies designed to enhance company earnings and stock prices.

Weiler concludes flatly, "It is time for American labor law to recognize that employees alone are the constituency that should be involved in the judgment about whether they need union representation to persuade corporate management to enhance their earnings and improve their working conditions."

Would that Catholic Healthcare West had recognized this at the outset of its dealings with SEIU. Instead, CHW initially hired an anti-union consulting firm to thwart SEIU's organizing efforts and, even today, after terminating its contract with that firm, insists it has the right to retain lawyers and other consultants to campaign for workers' allegiance during SEIU's organizing drive.

This having been said, I am glad to report that CHW currently is negotiating with or at least meeting with and talking to SEIU, with the Federal Mediation and Conciliation Service's director serving as a third-party mediator. This is a step in the right direction, thanks in large part to the intervention of Cardinal Roger Mahony of Los Angeles, who persistently called upon the parties to negotiate a collective bargaining contract and, to this end, to utilize a neutral mediator's services.

Let us pray that the current SEIU-CHW talks result in an acceptable solution to a conflict that has been harmful to both parties for too long.

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