Wednesday, March 4, 2009

What is a Union?

Now that you've read the title of this blog, clear your mind of everything that has comes to mind about Labor Unions. Some Labor Unions have become too powerful because they have been granted too much power by the membership.

The "bargaining scope" of a labor organization can be very limited, in fact, if you elected one "bargaining representative" to negotiate your health benefits and another "bargaining representative" to negotiate your salary, you would effectively belong to two Unions.

This blog-post asks the reader to consider an IT Professional Association (Union) with an extremely limited bargaining scope -- employment based immigration.

The term "Union" has become associated with entitlement, but other definitions are constructive.

Three piece fitting that joins two sections of pipe, but allows them to be disconnected without cutting the pipe.

In computer science, a union is a data structure that stores one of several types of data at a single location. There are only two safe ways of accessing a union object. One is to always read the field of a union most recently assigned; tagged unions enforce this restriction.

Unions - A trade union or labour union is an organisation of workers who have banded together to achieve common goals in key areas such as wages, hours.

The true problem, which should be addressed in the with the H-1B & L-1 nonimmigrant visas is that "5415 Computer Systems Design and Related Services" is oversubscirbed with nonimmigrant workers . One hundred percent of OES employment growth has been reserved to H-1B workers in this decade.
"In 2006, 51% of new H-1B recipients were in computer-related occupations, including 48% in the United States Citizenship and Immigration Services occupational category of "occupations in systems analysis and programming," which includes many S&E occupations, such as computer scientist, and technician occupations, such as programmer." National Science Foundation: "Science and Engineering Indicators 2008"

American Industry Classification System (NAICS)
54151 Computer Systems Design and Related Services
541511 Custom Computer Programming Services
541512 Computer Systems Design Services
541513 Computer Facilities Management Services
541519 Other Computer Related Services

Consider a Professional Association, that is instructed to become the "bargaining representative" to the for SOC Computer related occupations within the NAICS "Computer Systems Design and Related Services" Industry. The bargaining scope of this Professional Association would be the adherence to employment-based immigration law.

The benefit of having an immigration related bargaining unit is twofold, one the employer must notify the bargaining unit of its intention to hire an H-1B, and two there cannot be a strike or lockout when an LCA is filed.

20 CFR 655.733 - What is the third LCA requirement, regarding strikes and lockouts?

An employer seeking to employ H-1B nonimmigrants shall state on Form ETA 9035 or 9035 E that there is not at that time a strike or lockout in the course of a labor dispute in the occupational classification at the place of employment. A strike or lockout which occurs after the labor condition application is filed by the employer with DOL is covered by INS regulations at 8 CFR 214.2(h)(17).

(b) Documentation of the third labor condition statement. The employer need not develop nor maintain documentation to substantiate the statement referenced in paragraph (a) of this section. In the case of an investigation, however, the employer has the burden of proof to show that there was no strike or lockout in the course of a labor dispute for the occupational classification in which an H-1B nonimmigrant is employed, either at the time the application was filed or during the validity period of the LCA.

20 CFR 655.734 - What is the fourth LCA requirement, regarding notice

An employer seeking to employ H-1B nonimmigrants shall state on Form ETA 9035 or 9035E that the employer has provided notice of the filing of the labor condition application to the bargaining representative of the employer's employees in the occupational classification in which the H-1B nonimmigrants will be employed or are intended to be employed in the area of intended employment, or, if there is no such bargaining representative, has posted notice of filing in conspicuous locations in the employer's establishment(s) in the area of intended employment, in the manner described in this section.

Strikes, Lockouts & Picketing
When a trade union is unable to negotiate a collective agreement, they sometimes choose to strike an employer. A strike includes (1) a cessation of work, (2) a refusal to work, or (3) a refusal to continue to work, by two or more employees for the purpose of compelling their employer to agree to terms or conditions of employment.

Similarly, employers may choose to lockout their workers. A lockout includes (1) the closing of a place of employment by an employer, (2) the suspension of work by an employer, or (3) a refusal by an employer to continue to employ employees for the purpose of compelling employees to agree to terms of conditions of employment.

When the Professional Association has obtained legal status to represent the bulk of workers within the NAICS "Computer Systems Design and Related Services" Industry and SOC "COMPUTER-RELATED OCCUPATIONS", we can petition the DOL and USCIS for H-1B occupational data and prove the visa oversubscription. The next step is to petition the government to remove the occupational Computer related occupations group from the list of H-1B occupations.

Appendix 2


The power (and funding) for an American IT Professional Association, would come from injecting itself into the recruiting process. Providing information services to American IT Professionals and creating lists of preferred recruiters that support our positions. These recruiters would fund and profit from the Association.

The out of pocket costs to the American IT Professional, would simply be to use the Associations resources as exclusively as is prudent -- and contribute intellectually to the promotion of the profession. More on this later.

1 comment:

Anonymous said...

Hi, you hit on the spot with this writeup and analyis. The combination of a union for bargaining and the limiting of number of visas for computer related fields based on number of new jobs created yearly (minus new students and unemployed locals) should yield the number of available H1b visas. Then later other Occupational Skills can use this as a model (i.e. more need for electrical engineers vs mechanical engineers). This method will be more sustainable in the long run and not create a glut where there are a lot of unemployed Americans in that specialty.

Really good analysis and interpretation.

Good job.