The Global State of Workers' Rights - United States

Mostly Free

The United States is almost alone among economically advanced democracies in its lack of a strong trade union movement in the private sector. While in the decade after World War II some 35 percent of workers in the nonagricultural private sector were represented by unions, by 2009 that figure had fallen below 8 percent.

Both federal and state governments have built a complex network of laws, policies, and enforcement agencies designed to combat discrimination based on factors including race, gender, ethnicity, and age. Antidiscrimination laws are fortified by a series of court decisions that confirm the government's power to prosecute cases of workplace bias. There are, in addition, laws that make it possible for employees to sue corporations or government agencies in cases of "wrongful dismissal." At the same time, the ability of workers to join trade unions and engage in collective bargaining has been gradually restricted through legislation, regulatory decisions, and court verdicts.

The basic legal framework for labor relations, the National Labor Relations Act, was adopted in 1935. It guaranteed workers the right to join unions and sets the guidelines that govern the recognition of unions as collective-bargaining entities. The law was enacted in the midst of a tumultuous, and at times violent, struggle by unions to organize workers in the auto, steel, and rubber industries, among others. Although the postwar political environment was increasingly turning against them, unions by the 1950s represented well over 30 percent of the private-sector workforce, with a much higher percentage in parts of the country that were hospitable to union organization.

The Southern states were more hostile to unions, however, and after Congress adopted the Taft-Hartley Act in 1947, giving states the authority to pass so-called right-to-work laws, the measures were quickly enacted in nearly all of the states in the South. The laws prohibit unions from making membership or payment of dues a condition of employment, either before or after a worker is hired; today, 22 states have some form of right-to-work provision in their labor codes.

The laws have had a profound effect on the labor movement's ability to organize workers on a truly nationwide basis, restricting union growth across the South and the Sun Belt region.

Meanwhile, shifts in the national economy have reduced the number of industrial jobs that traditionally supplied the bulk of union membership. This trend has been magnified through a series of decisions by the courts and the National Labor Relations Board (NLRB) on the definitions of job categories that are exempted from normal labor-law coverage, namely those with supervisory duties. These rulings have continually expanded the exempted categories, rendering the affected workers ineligible for union protection and other benefits.

In addition to legal and regulatory barriers, unions have confronted mounting resistance from employers. Management has used a variety of tactics to block unionization, including the intimidation of union activists. At many corporations, antiunion arguments are presented to employees from the day they are hired, including at captive-audience meetings and in frequent one-on-one discussions with supervisors. Employers often resort to stalling when faced with a representation vote that is likely to favor the union, and they have been willing to violate labor laws in their efforts to defeat unionization campaigns. For example, they illegally threaten to close a plant or facility in the event of unionization, and ignore laws against harassing or dismissing union activists. Workers are typically unable to obtain timely justice for acts of reprisal by management; it takes an average of two years for a worker to win reinstatement or compensation after a finding of illegal dismissal for union activity. Furthermore, when found guilty by the courts or the NLRB, companies are often compelled to do nothing more than provide back pay, a slap-on-the-wrist penalty that has little deterrent effect. Even when unionization has occurred, employers frequently negotiate with labor representatives in bad faith, engaging in collective bargaining without any intention of reaching a contract.

Changes in the political climate in recent decades have spurred corporations to take a tougher line in negotiations with existing unions and to resist unionization even more forcefully. One new management tactic is the replacement of striking workers by nonunion workers on a permanent basis. Striker replacement, though legal, had seldom been seen in the postwar era. Its reappearance of late has had the effect of nullifying the strike as a significant weapon in labor relations. Although only a relatively small number of companies have taken this extreme step, the threat that other businesses might follow suit has discouraged workers from striking.

The impact of the corporate world's antiunion tactics can be observed in data from the Bureau of Labor Statistics, which indicated that among companies with over 1,000 workers, the average annual number of strikes during the 1980s was 80, falling to just 45 in 1990. By contrast, in the previous three decades, the lowest number of strikes in one year was 181, in 1963; the highest, 437, came in 1953.

Employers and their political allies contend that the phenomenon of union decline has less to do with government policy and corporate hostility than with shifts in the economy, technological advances, union corruption, worker contentment with job conditions, and changes in the workforce that favor part-time workers and the self-employed. Attitudinal surveys have generally found that Americans favor most of the benefits and protections that come with union representation while at the same time harboring mixed or negative feelings about unions themselves.

Another problem facing unions stems from an increase in the role of government in the economy. Many workplace issues that might be dealt with by unions are increasingly the responsibility of the federal government, including job safety, discrimination, and sexual harassment. Moreover, in an era of global economic competition, the ability of unions to offer substantially higher rates of pay at levels that would protect members from inflation has dwindled. The one area that remains insulated from this and other private-sector concerns, the public sector, has seen its union ranks surge over the past several decades. Currently over 35 percent of public employees are represented by unions. However, even public-sector unions may suffer as governments are forced to cope with unsustainable budget deficits.

Over the past four decades, attempts to bolster unions' ability to organize workers and negotiate contracts have regularly failed. The latest bid to reform labor law is the proposed Employee Free Choice Act, now under consideration in Congress. Under the bill, once a union convinces a majority of workers at a given facility to sign cards expressing their desire to organize, that union is automatically certified as the bargaining representative of all the workers at the facility. If adopted, the legislation would represent a major change in labor-management relations, since unions have traditionally gained bargaining-representative status through secret-ballot votes by the workers involved. Although the administration of President Barack Obama supports the measure, it appears unlikely to pass in its original form.

Despite the membership decline, unions remain a significant force in U.S. political life. Most belong to one of the two large labor federations, the American Federation of Labor- Congress of Industrial Organizations (AFL-CIO) and Change to Win, which split from the former in 2005. Both federations play important roles within the Democratic Party and made substantial financial contributions to the electoral campaigns of Barack Obama and Democratic candidates for Congress. Unions have also put their lobbying power behind legislation to overhaul the U.S. health care system and other social policy measures.