KAPLAN’S “COLLECTIVE BARGAINING” FLYER – FACT-CHECKED

We did some googling, and found some interesting information related to the "Collective Bargaining" flyer from management.

We had to look through some documents on a site called DOCSTOC, which unfortunately wants you to pay to download or print the documents, but if you follow the links below, you can just read them in your browser.

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The first link is fun - it's an almost identical copy of the Kaplan “collective bargaining” flyer, but from some other employer and against some other union (the CNA...?) - the same out-of-context quotations from labor "law" are used! And as you will see below, more than two companies have used these same quotations.

http://www.docstoc.com/docs/89365961/The-C

The second link is the real meat and potatoes - it is the text of a 2008 decision by an administrative law judge, James M. Kennedy, recommending that a decertification election be overturned.

http://www.docstoc.com/docs/6812551/OConnor-Woods32-RD-1536JD%28SF%29-17-08James-M-Kennedy041508

Basically the union representing workers in a residential community for the elderly had been in contract negotiations for a year (2006) with the management. After failing to reach agreement, some of the workers petitioned to decertify the union. The decertification election was held in late 2007, and the union narrowly lost (i.e. slightly more than half of the workers voted to decertify).

The union appealed on multiple grounds, and this judge examined some of those grounds. To cut to the chase, he found that management had engaged in unlawfully misleading and intimidating behavior before the decertification election, and he recommended that a fresh decert election be held (scroll down to the last two pages, 15 and 16, to see this).

The part that we are interested in is on pages 3-5. You should read it all, but in summary, the judge describes a company flyer that was handed out to the workers with THE SAME QUOTATIONS as Kaplan is now using (this is in 2007 remember, who knows how many years this stuff has been being recycled??)... the judge breaks down how these quotations are taken out of context to deliberately mislead.

Like I said, read it yourself, but here's a summary, in the order the judge explains them, with Kaplan's quotations for easy reference:

(1) "in the give-and-take of bargaining a union might give up insurance”, etc - (La-Z-Boy, Inc.) - the quotation from the La-Z-Boy case is presented as if it is from the NLRB board's ruling in that case, as if it is a statement of law that was decided by that case. It is in fact, a quotation from the case's judge DESCRIBING WHAT A LA-Z-BOY MANAGER HAD SAID TO THEIR EMPLOYEES!! Notice how the double-meaning of "might" with the implication of "may" (as in permission) is used to mislead us as to what a union "might" do... So imagine that, someone in Kaplan management says in a weekly meeting, “the union might ask for your first-born child in exchange for dues check off”, then later we all go to court over the result of the election, then during the case the judge quotes the manager’s comment about first-born children, then the next thing you know… future corporations faced with employees considering unionization will be citing the well-known case of Kaplan vs Newspaper Guild: “the union might ask for your first-born child! IT’S IN THE LAW!!!”

(2) "Collective bargaining is potentially hazardous" etc. - (Coach and Equipment Sales Corp) - this one is a doozy, because the quotation is from a case in which the NLRB ordered a second election because the company in question had violated the law by strongly hinting to its workers that if a union came in, the company would make sure that no increases in benefits would be produced by the negotiations. The quotation is actually from the judge’s analysis of the company’s bad behavior. Here is the full quotation:

“Taken together, these statements do not simply confine themselves to the legitimate message that collective bargaining is potentially hazardous for employees and that as a result of such negotiations employees might possible wind up with less benefits after unionization than before. Rather, these statements can only be taken as meaning that Respondent intended to adopt a bargaining stance designed to insure that collective bargaining could not result in any increases in benefits for the employees and would probably result in decreased benefits – in short, that unionization, if it had any effect at all, would, because of Respondent’s intransigence, result in worse benefits, not better.”

“Respondent” here means the company, Coach and Equipment Sales Corp, and “these statements” refer to statements made by Coach and Equipment to their employees. So do you see what is going on here? This statement is a sharp criticism from a NLRB judge of a company’s behavior in overstating the possible downsides of collective bargaining, and indeed of threatening to not bargain in good faith; but multiple corporations, including Kaplan, choose to selectively quote from this passage to try to suggest that the board’s decision in this case was that “collective bargaining is potentially hazardous”. In fact, the board’s decision in this case was that the company acted illegally and they ordered a second election!

(By the way, to give Kaplan some credit, it could be worse. This is the quote that the management of the elderly residential community lifted from this same passage: “Collective bargaining could not result in any increases in benefits for the employees and would probably result in decreased benefits, in short, that unionization, if it had any effect at all, would… result in worse benefits, not better.” Unbelievable, right? You can see yet another example of this in the first link above, where the company butchered this same passage to deceptively make their point.)

(3) “The U.S. Government and the NLRB do not guarantee employees…” (Bendix Corp, 6th Circuit Appeals) – this one is interesting, and judge James Kennedy goes into detail about how the quotation is not contextualized and in some situations could be considered threatening.

However, if you look at the case yourself - http://www.leagle.com/xmlResult.aspx?page=5&xmldoc=1968541400F2d141_1509.xml&docbase=CSLWAR1-1950-1985&SizeDisp=7 – you will see that the quotation is, at least, an accurate representation of what was said in that decision. The problem is that it isn’t relevant to us at Kaplan!

This 1968 decision overturned a NLRB decision to hold a second election at Bendix after the union lost the first one. It seems that both the company and the union behaved badly – the company promised better wages and conditions if the union were defeated, and the union promised that conditions could only get better if the workers unionized. That’s why that language is in that decision – the appeals court states very clearly that neither the US Government nor the NLRB guarantee workers’ current conditions. But the reason they are stating that is to explain their decision to overturn the union’s second (successful) election. That union had been making the false claims since before the first election, but they still lost the first time.

The point is, the Newspaper Guild has never claimed that nothing can change for the worse if they are chosen to negotiate on Kaplan teachers’ behalf. What they did say, which is entirely different, is that a general contract stipulates minimum salaries, not maximum ones. In other words, if a company wishes to offer an individual employee, or indeed all of its employees, more than is specified in the contract, they are free to do so, and the employee is free to accept!

This is completely different from speculating about what may or may not be “on the table” in a contract negotiation. It’s entirely possible that workers, or management, might wish to “trade away” a current benefit or condition in exchange for a different one.

What Kaplan seems to want everyone to forget is that, if the negotiated contract is unsatisfactory to most teachers, or indeed if no agreement can be reached on a contract at all, then nothing changes. So if the union’s and teachers’ negotiating skills are so poor that teachers stand to “lose all benefits and get none of those we wish to change”, as it were, then when it comes time to vote on that contract, it will be defeated, and the union will go away.

Currently our management seems to be hell-bent on making us forget the fact that, just as the union has to first be chosen by a majority of voting teachers to even earn the right to negotiate, whatever contract that finally emerges from negotiations also has to be voted on and approved by a majority of the voting teachers. In the event that the Guild is elected to represent us, our primary task will be to make sure that the various interests of all teachers are represented in the negotiations, so that a contract emerges that is acceptable to everyone (including management). And if such a contract cannot be achieved, then it won’t be voted in and we can all go back to negotiating with the company on an individual basis.