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Union Yes Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 05:15 AM
Original message
DU legal minds please weigh in.(Labor Related)
Hello DU

Of course, all are invited and welcome to comment. I'm looking for legal opinion on a labor issue that millions of us American union members have experienced.

That issue..

Does the following meet the legal definition of discrimination(mass) in a civil court of law?

An established pattern of willfully shuttering union shops/factories within a corporation for the sole purpose of eliminating its union workforce. I will give a real life example.

From 1997-2000 I was employed at Dana Corporation. An auto/agriculture/heavy trucking parts manufacture/supplier company. We supplied GM, Ford, Chrysler, John Deere ect, to name a few.

The plant that I worked at was a union shop. We were represented by United Auto Workers. The plant that I worked at employed about 350 union members.

In the 1980's Dana had 30-35 union plants scattered across America. Mostly in the midwest, OH, MN, MI, IN ect.

By 1997 Dana had reduced that number to 11 union plants. 5 were covered under a master contract. 6 were under there own individually negotiated contracts.

It was well known within the union that Dana couldn't stand dealing with unions.

Therefore, they willfully began a pattern of shuttering union plants and moving them mostly to southern states and reopening with a nonunion workforce. Dana started this pattern of union busting in the 80's and probably continues to this day.

I was permanently laid off in 2000 and our plant shuttered forever in 2001.

In my opinion..(for what it's worth)

When Dana shut down it's union shops for the sole purpose of eliminating its union workforce, they violated our legally protected rights to form, join and belong to a union. They broke the law. Tens of thousands of Dana union workers have lost their jobs since the 80's.

In the process, Dana and many other corporations across America have comitted one of the most blatant forms of job discrimination. Millions of union members across America have lost there jobs because they were union members. All forms of discrimination are horrendous violations of human rights.

This pattern of union busting isn't exclusive to Dana. It's happening all across America. Business' are hell bent on union busting.

I want people to know, I'm not here looking for a lawsuit. Dana is already bankrupt. I am disabled and wouldn't have the strength to be part of something like this anyway. I'm not seeking pity.

However, I have great empathy for my union bros and sis'. Who worked so hard to build a life only to have a taken away because of greed. Too many dreams have been crushed due to this greed.

Any law professors here?

Does massive union busting meet the legal definition of discrimination in a court of law?
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safeinOhio Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 05:29 AM
Response to Original message
1. I would look to the 14th Amendment.
Equal protection.
However, I am not a lawyer and I do not play one on TV.
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Union Yes Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 07:52 AM
Response to Reply #1
4. Good advice. Here it is.
Amendment XIV

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the several states according to their respective numbers, counting the whole number of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any state shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
.......

Section 1 seems to deal with this issue. Thanks for the tip.
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exboyfil Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 06:21 AM
Response to Original message
2. Do you think if Dana had not followed such a policy
of shuttering union shops it would have had better financial success?

What has happened to Dana has happened to many OEM suppliers. It is called "The China Price". I have been on both sides of "The China Price" negotiation. As a Sales Engineer I have lost business due to this effect, and, as a Project Engineer for an OEM, I have seen its implementation from the other side.

The auto industry in particular had been driving its suppliers (especially in the mid-90s). Leadership with this mindset went to work for my customer (who eventually became my employer). The auto industry basically burned its supply base down for a while. This management style almost did the same for my employer, but they have backed off somewhat in that approach.

Read "The World is Flat" to get an overview on what happened and why it continues to happen.

I don't know the particulars of Dana's situation, but I do know they were getting squeezed by the OEMs. Maybe they irrationally did not want to collectively bargin, or they were trying to reduce their cost inputs in an attempt to remain viable. I would think that the only way you could win a lawsuit would be to show that their behavior was not motivated by reducing cost inputs but strictly as a bias against the unions.

I listened to my company's last shareholder meeting, and one of the institutional investors asked that, since we are going into a recession, can't we expect more give backs from our suppliers. He used the word "squeeze". That about sums it up.
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Union Yes Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 08:45 AM
Response to Reply #2
5. Very valid points.
Something I forgot to add to my OP. There is no doubt in my mind that this would be enormously difficult to prove in court.

You're spot on right about how the OEM supplier industry squeezed us out. I witnessed it too, along with you.

"I would think that the only way you could win a lawsuit would be to show that their behavior was not motivated by reducing cost inputs but strictly as a bias against the unions."

That's pretty much sums up what must be proved in a court of law. I believe union members could prove an obvious and willful bias against unions because of the gigantic number of union members that have lost their jobs. This massive elimination of union jobs started long before NAFTA so it's not totally to blame on those horrid trade agreements. NAFTA and subsequent trade agreements have been a major player in union busting. NAFTA gave union busting a shot of steroids.

The pattern of union busting goes back decades but really exploded in the 80's on through til today.

Thanks for adding those important points.

Peace
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Sanity Claws Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 07:14 AM
Response to Original message
3. Procedural issues
First, you have a statute of limitations issue. The last item you identified as part of the discriminatory pattern was 8 years ago.
Second, individual union members would have to file their complaints of unfair labor practices with the NLRB, and not go directly to court. I'm not sure whether the union itself could suit directly in court. I would have to research that.

I know that I have not answered your question. I point out the procedural issues because it appears that the discrimination issues are moot. Under the set of facts you have given, it does appear discriminatory. However, you can be sure that the employer has at least a pretextual nondiscriminatory explanation for its acts. As the party complaining of the acts, the worker would have the burden of proving that union discrimination was the reason for the employer's acts. It is always a tough row to hoe.
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Union Yes Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 08:58 AM
Response to Reply #3
6. Good Points.
I did consider statute of limitations when I wrote the OP. But this case wouldn't apply to me anyway. The said company is already bankrupt as far as I know and due to health reasons, I wouldn't have the strength to take part in any lawsuit of this nature.

But for the millions of union members who have lost their jobs due to unionbusting, they actually might have a comlaint.

Corporate America seems to have taken on an unwritten rule. The utter destruction of organized labor.

IMO when union shops are closed and the company moves to another state to reopen the new factory with nonunion help, that alone offers at least some proof of bias against unions.

I totally agree that proving this in a court of law or before the NLRB would be an enormous challenge.

I just wanted to see if any legal experts would weigh in with their thoughts.

Peace
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ProgressiveProfessor Donating Member (1000+ posts) Send PM | Profile | Ignore Wed Jan-21-09 10:35 AM
Response to Original message
7. Don't think there is much here to use...
Its been discussed for years and has never gotten any traction. Its also one of the reasons that unions forced job guarantees into their contracts over the years.

Companies are allowed to open and close plants as they see fit. There are notification requirements in state and Federal law and sometimes contract language (if unionized) regarding mass personnel actions.

Proving Dana did it just to bust the union would be just about impossible. If there is any other benefit to Dana, that argument is gone. Even if it was the primary objective, the workers could still have a union, with or without the plant. So closing a plant is not a violation of workers rights to unionize.

If done incorrectly (like the windows factory in Illinois), there are issues with termination notices and such, but nothing can be done long term if the owners decide to shutdown a particular plant, unless there is some contract language that prevents it.

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