2011 Annual Survey of violations of trade union rights - USA

Population: 314,700,000
Capital: Washington
ILO Core Conventions Ratified: 105 – 182

Employers are very hostile towards unions, and union-busting is a multi-billion dollar business. For example Deutsche Telekom continued its aggressive anti-union campaign at T-Mobile. Attempts to strengthen labour legislation and improve the National Labor Relations Board were counteracted by conservative forces. Public service employees have limited trade union rights.

TRADE UNION RIGHTS IN LAW

While most U.S. workers have basic trade union rights, there are serious gaps in the labour laws. The National Labor Relations Act (NLRA) provides for freedom of association, the right to collective bargaining and protection against anti-union discrimination in the private sector, but managerial and supervisory workers, agricultural workers, domestic workers and independent contractors are excluded. In the public sector most federal government employees are protected against anti-union discrimination and have some collective bargaining rights, although the matters that can be bargained upon are confined to non-wage subjects and limited by extensive management rights. At the state and local government level, most of the 50 states allow collective bargaining for at least some categories of public employees, but only about half allow it for all public sector employees.

Under the U.S. system of exclusive representation, employers have no obligation to bargain with a union unless a majority of the workers vote for union representation. Although the NLRA prohibits employers from interfering with workers' choice to form or join a union, they are permitted to campaign against unionisation and may utilise a wide range of tactics, including requiring employees to attend anti-union presentations. Unions have no right of access to employer property to communicate with employees and no right of reply to anti-union statements. Remedies for anti-union discrimination or dismissal are weak, and there are no meaningful penalties for employers who fail to bargain in good faith once the workers have voted for unionisation.

The right to strike, although protected for private sector workers covered by the NLRA, is circumscribed by the employers' right to permanently replace striking workers. Some forms of strike activity, such as intermittent or partial strikes or secondary strikes, are also banned. In the public sector, federal workers are prohibited from striking, as are state and local government workers in many states.

TRADE UNION RIGHTS IN PRACTICE AND VIOLATIONS IN 2010

A large and thriving union-busting consulting industry: Because of the latitude given to employers under U.S. law to campaign against unionisation and the weakness of the protections against anti-union discrimination, a USD 4 billion union-busting industry has developed in the United States consisting of consultants who advise employers on tactics both legal and illegal to employ during union organising campaigns to discourage and intimidate workers from exercising their legitimate rights to unionise. A recent study found that these outside consultants are hired by employers in more than 80% of all organising drives.

Legal and illegal anti-union tactics widely employed: Studies have shown that in the vast majority of union organising campaigns, usually at the direction of outside consultants, employers require workers to attend group "captive audience" meetings as well as one-on-one meetings with their supervisors to hear anti-union propaganda – tactics which are permitted under current law despite their intimidating effect on workers. These tactics are frequently combined with illegal retaliation or threats of retaliation against union supporters. Based on statistics compiled by the National Labor Relations Board, it is estimated that one out of every five union activists involved in an organising campaign can expect to be fired.

Although employers are required to bargain in good faith once a majority have voted for union representation, many employers use delaying tactics and other techniques to avoid reaching agreement. A study of union elections conducted between 1999 and 2003 showed that more than 50% of newly organised units had no collective bargaining agreement one year after the election, and 37% were still without an agreement two years after the election. As employers are aware, failure to achieve a first contract tends to foster a sense of futility about the benefits of unionisation and disaffection with the union and can cause workers to vote to decertify the union as their bargaining representative.

Ineffective remedies fail to punish or deter violations and compensate workers harmed: In contrast to other workplace anti-discrimination laws, under which employers who violated the law can be required to pay compensatory and punitive damages, the remedies for violation of the National Labor Relations Act (NLRA) are weak, and often are not imposed until years after the violation. The typical remedy for an illegal threat by an employer to fire or otherwise discriminate against a union supporter or to close down a workplace in retaliation for unionisation is a requirement that the employer post a notice stating that it will not make such illegal threats in the future. The typical remedy for an illegal firing is a requirement that the employer reimburse the worker for lost wages, minus any wages the worker may have earned since the firing, offer the worker reinstatement, and post a notice saying that it will not fire workers for union activity in the future. The typical remedy for an employer's unlawful refusal to bargain in good faith for an agreement is a requirement that the employer bargain in good faith in the future.

Violations of ILO Standards not addressed: Over the years, in a number of cases before the ILO's Committee on Freedom of Association, the U.S. has been found to be in violation of freedom of association principles – for example, by permitting the use of permanent striker replacements (1991), by denying workers the right to meet with union representatives in the workplace to discuss organising (1991), by imposing restrictions on secondary boycotts (1992), by denying undocumented workers meaningful remedies for anti-union retaliation (2003), by denying collective bargaining rights to airport screeners (2006), by the maintenance of state laws that prohibit collective bargaining by public employees (2007), and by excluding low-level supervisors from the protection of the National Labor Relations Act (2008). None of these violations have been remedied.

Anti-union forces block efforts to reform the National Labor Relations Act: The Employee Free Choice Act, which would amend the National Labor Relations Act to strengthen remedies for violations, allow employees to demonstrate support for unionisation by signing written authorisation, and provide for mediation and binding arbitration if no agreement is reached for a first collective agreement covering a newly organised workplace, has been pending in the U.S. Congress for several years. The legislation has the support of President Obama, but anti-union forces have been able to use legislative manoeuvres to prevent the Act from coming to a vote in the Senate. In elections conducted in late 2010, Republicans regained a majority in the House of Representatives, dooming any chance that the legislation will be approved in the near future.

Abuses continue in Los Angeles carwash workers' campaign: In August two Los Angeles (LA) carwash owners, who had become the face of abusive operators in the carwash industry, each pled no contest to criminal charges brought by the LA City Attorney – based on violations uncovered by the campaign – and were sentenced by a judge to one year each in county jail. In addition they will still have to pay workers in the case an estimated USD 1,250,000. Protective orders were also issued that prohibit the owners from attempting to intimidate or dissuade any employee or victim in the criminal case from participating in the prosecution of any legal action, and from unlawfully prohibiting these workers from engaging in union activities.

In October California Attorney General Jerry Brown filed a lawsuit in Los Angeles Superior Court against one of the largest carwash owners in California. The lawsuit is seeking USD 6.6 million in penalties and unpaid wages for carwash workers employed at 8 carwashes throughout California. The CLEAN Carwash Campaign brought the violations to the attention of the Attorney General after receiving reports of conditions from workers in LA.

Efforts to strengthen the National Labor Relations Board stymied: After eight years in which conservative employer lawyers appointed by President Bush controlled the National Labor Relations Board – the agency responsible for enforcing private sector worker rights to organise and bargain collectively – President Obama has named new appointees to the Board who are committed to vigorous enforcement of the law. However, in early 2010, following an intensive lobbying campaign by business groups, anti-union members of Congress were successful in preventing a Senate confirmation vote for Craig Becker, a highly qualified and well-respected attorney and legal scholar, because he represented trade unions and, as a law school professor, had written scholarly articles criticising U.S. law for failing to adequately protect worker rights. President Obama was able to use his executive powers to appoint Mr. Becker to the Board without a confirmation vote, but only for a short term that will expire in 2011.

In mid-term elections held in late 2010, conservative forces made considerable gains in Congress and Republicans regained a majority in the House of Representatives. Republican leaders made clear that they intended to use their new power to try to prevent the NLRB from functioning effectively on behalf of workers through budget cuts, refusals to confirm qualified persons appointed by President Obama and other forms of legislative pressure.

Newly elected conservative state governors and legislators vow to counteract unions: Following Republican gains in late-2010 elections, U.S. unions and their allies were bracing for legislative battles over attempts to eliminate collective bargaining for public sector workers in several states. Conservative legislators and business-funded groups were also preparing state-level legislation and ballot initiatives that would prohibit unions from collecting service fees from workers whom they are required to represent but who have declined to join the union.

Deutsche Telekom continues aggressive anti-union campaign at T-Mobile: Deutsche Telekom, through its T-Mobile USA subsidiary, maintained workplaces hostile to workers' freedom of association in 2010. It disciplined workers for accepting union literature after T-Mobile workers publicly attended the annual general meeting of shareholders in Germany in May. In a Colorado call centre, company security guards engaged in surveillance of union hand-billing in public areas. Managers destroyed union literature at retail stores to demonstrate their hostility to the union. In the New York area, after employees expressed interest in the union, management held mandatory meeting in which it expressed the view that the company did not want a union. In San Diego, retail workers were told by managers not to talk to the union.

In September 2010, Human Rights Watch issued a report highly critical of Deutsche Telekom's labour practices in the U.S. According to the report, "Since entering the U.S. market in 2001, T-Mobile USA has lowered its parent company's standards of decency, meeting labor organizers with hostile practices that contradict Deutsche Telekom's track record of corporate responsibility in Europe. Instead of lifting American workers to the same level as its European employees, DT – via T-Mobile USA – has engaged in eight years of aggressive antiunionism." The company continues to retain the services of the known union-avoidance lawyer Peter D. Conrad from Proskauer Rose LLP.

Airport screeners still without collective bargaining rights: The Transportation Security Administration (TSA) was created under the Aviation and Transportation Security Act (ATSA) in 2001 after the terror attacks of 11 September. The ATSA gives the TSA administrator control over conditions of employment, including the right to bargain collectively. With the exception of current TSA Administrator John Pistole, all TSA administrators have been former President Bush appointees and have denied bargaining rights. Furthermore, Transportation Security Officers (TSOs) are subject to unfair hiring practices, inconsistent agency regulations, and unjust leave restrictions and policies. They are not covered by the General Schedule System that regulates pay rates and pay increases for other federal employees.

TSOs have been organising with the American Federation of Government Employees (AFGE) since the TSA's formation in 2001, and some 12,000 have joined the union despite their lack of collective bargaining rights. The AFGE regularly represents TSOs before the TSA Disciplinary Review Board, Equal Employment Opportunity Commission, and in the courts and media. The union was instrumental in getting TSA not to expand the privatisation of the country's airport screening function beyond the 16 airports that currently use a contract screening force.

On 22 February 2010 AFGE filed a petition with the Federal Labor Relations Authority (FLRA) for exclusive union representation at TSA. The petition was dismissed by the FLRA Chicago Regional director. AFGE appealed to the full FLRA, which on 28 July agreed with AFGE that the dismissal warranted a review. On 12 November the FLRA accepted AFGE's petition, clearing the way for a union election at TSA. There have been two election consent meetings involving all parties. The election is tentatively scheduled for 9 March – 19 April 2011, with ballot counting to begin 20 April.

John Pistole was appointed TSA administrator in June 2010 and said he would conduct a review of bargaining rights at the agency. While he has said in testimony and to TSOs in the airports that the review was completed, a decision on allowing for collective bargaining has not yet been made.

Rite Aid workers' campaign to win first collective agreement enters third year: For more than three years, workers at Rite Aid's giant distribution centre in Lancaster, California have been struggling to win their first collective agreement. Health insurance has become the major stumbling block in negotiations because management is insisting that workers pay up to 28 times more than the actual increase incurred for insurance premiums. Instead of negotiating in good faith with the International Longshore and Warehouse Union (ILWU), Rite Aid – the nation's third-largest retail drug chain – has wasted time hoping that its warehouse workers would just give up or give in.

The warehouse workers in California have been building a coalition with other Rite Aid workers across the country. That coalition, which includes United Food and Commercial Workers International Union (UFCW) and Service Employees International Union (SEIU) locals, has led to better information sharing and joint actions by workers at many Rite Aid stores and facilities.