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2008 Annual Survey of violations of trade union rights - USA

Publisher International Trade Union Confederation
Publication Date 20 November 2008
Cite as International Trade Union Confederation, 2008 Annual Survey of violations of trade union rights - USA, 20 November 2008, available at: http://www.refworld.org/docid/4c52ca6423.html [accessed 29 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

Population: 301,000,000
Capital: Washington
ILO Core Conventions Ratified: 105 – 182

The National Labor Relations Act restricts trade union rights in violation with minimum international labour standards. The National Labor Relations Board issued a large number of additional measures in 2007 which significantly weaken workers' rights and protections. In most enterprises there are no constructive labour relations or social dialogue since employers use every means to stop or undermine trade unions and to harass trade union activists. Union busting is a 4 billion dollar industry in the USA.

Trade union rights in law

Many excluded: The National Labour Relations Act (NLRA) is the primary federal labour law in the United States, and is binding on the states. The NLRA guarantees the right of freedom of association, the right to bargain collectively, and the right to join trade unions to private sector employees. However, in addition to excluding public sector workers, the statute excludes many categories of private sector employees from its scope, including agricultural and domestic workers, supervisors, and independent contractors. In 2002, the U.S. General Accounting Office found that some 25 million private civilian workers, as well as 6.9 million federal, state and local government employees, did not have the right under any law to negotiate their wages, hours or employment terms. Since then, even more workers have been denied coverage.

Private sector: In the private sector, the law requires proof of majority status in order for a union to become the exclusive representative of employees within a bargaining unit. The National Labour Relations Board (NLRB), the administrative agency that enforces the NLRA, will only certify a union that obtains a majority vote during a Board-supervised election although, as discussed below, voluntary recognition agreements are also legal.

Employers – allowed to hold anti-union meetings: Employers have a statutory right under the NLRA to express their views during a union campaign, so long as they do not interfere with their employees' free choice. In practice, however, employers have a legal right to engage in a wide range of anti-union tactics that discourage the exercise of freedom of association. For example, employers have the right to hold "captive audience" meetings, which they use to make anti-union presentations, (see below). Under the law, it is perfectly legal for employers to discipline or even fire workers for failing to attend these meetings. The law also allows employers to "predict" (though not "threaten") that a workplace will shut down if workers vote for the union.

Public sector – collective bargaining denied to many ... :

... at federal level: In the public sector, approximately 40 percent of all workers are still denied basic collective bargaining rights. While the Federal Labour Relations Act covers over two million employees of the federal government, the statute outlaws strikes, proscribes collective bargaining over hours, wages, economic benefits, and imposes extensive management rights that further limit the scope of collective bargaining.

... and state level: Collective bargaining for state employees varies from state to state. Only a little more than half of the states allow for collective bargaining in the public sector; several more allow it only for narrow categories of workers. Even where public sector workers have the right to bargain, they generally do not have the right to strike. In North Carolina, all public employees are denied collective bargaining rights, a situation that in 2007 the ILO has determined violates workers' fundamental rights (Case No. 2460).

"War on Terrorism" used as pretext to restrict rights: The ongoing "War on Terrorism" has been used as a pretext to significantly roll back labour rights for employees of the U.S. government. In 2003, Congress authorised two Departments, Defence and Homeland Security, to create a new system for resolving labour-management disputes for the next six years. Both departments created new labour relations systems that virtually eliminated collective bargaining. The unions representing the employees of these federal agencies challenged the systems in court. In 2007, the U.S. Court of Appeals for the District of Columbia reversed a lower court and held that under the 2004 National Defense Authorization Act, the Department of Defense was authorised to curtail collective bargaining rights until 2009 for its civilian employees. Earlier, another panel of the same court struck down portions of the rules applying to employees of the Department of Homeland Security that abrogated certain collective bargaining agreements and limited the scope of collective bargaining.

The approximately 56,000 airport screeners who work for the Transportation Security Administration (TSA) have no rights of freedom of association or collective bargaining by virtue of a federal government order. Pursuant to a complaint filed by the AFL-CIO and the American Federation of Government Employees (AFGE) about the Government's violation of the rights of airport screeners,' the ILO's Committee on Freedom of Association in 2006 expressed "concern" with "the use of an ever-enlarged definition of work connected to national security to exclude" from collective bargaining" employees that are further and further away from the type of employee considered to be 'engaged in the administration of the State.'" (Case No. 2292, 794). Accordingly, the Committee recommended that the U.S. Government "engage in collective bargaining ... with the screeners' freely chosen representative" in matters "which are not directly related to national security issues." (798). To date, the screeners have not regained their rights of representation or collective bargaining.

Restrictions on collective action: The NLRA and judicial decisions interpreting the law place limitations on the ability of workers to engage in "concerted activity," such as intermittent strikes, secondary boycotts and other forms of aid. The law also allows employers to replace striking workers permanently. Permanent replacement workers can vote in a decertification election to eliminate union representation.

Undocumented workers: The NLRA, anti-discrimination laws, and wage and hour standards apply to employees regardless of their immigration status. However, the U.S. Supreme Court ruled in 2002 that undocumented workers are not entitled to back pay as a remedy for unfair labour practices under the NLRA, and they are not entitled to reinstatement. These restrictions have made it difficult to enforce trade union rights on behalf of the millions of undocumented workers in the United States. The ILO's Committee on Freedom of Association recommended, in November 2003, that the government should amend the legislation to bring it into line with freedom of association principles, but the United States has not done so.

Employee Free Choice Act: The Employee Free Choice Act was passed by the U.S. House of Representatives and gained majority support in the U.S. Senate before it was blocked by a Republican filibuster. The Employee Free Choice Act levels the playing field between workers and corporations by making it harder for employers to violate the law. The proposed Act would provide statutory protection for employees' right to choose freely whether to join unions and engage in collective bargaining by signing cards authorising union representation. The Act would also provide mediation and arbitration for first contract disputes and would establish stronger penalties for violations of employee rights when workers seek to form a union and during first contract negotiations.

Trade union rights in practice and Violations in 2007

Anti-Worker National Labour Relations Board: John Sweeney, President of the AFL-CIO, has stated that: "The function of the Labour Board is protecting workers rights and ensuring their freedom to form unions and bargain collectively for better wages, benefits and working conditions. Like so much else in the Bush Administration, this Labour Board has become nothing more than a shell for corporate special interests and it's time for it to be closed for renovation."

Union busting consultants: A $4 billion union-busting industry exists in the United States to defeat union organising drives through coercion and intimidation. In fact, a recent study found that 82 per cent of employers hire these high-priced, union-busting consultants to fight organising drives. Consultants employ a wide range of tactics, including many that skirt the law.

Anti-union terminations, meetings and threats: A 2005 survey into employer behaviour during organising campaigns, carried out by the University of Illinois and commissioned by American Rights at Work, shows that 91 per cent of employers, when faced with employees who want to join together in a union, force employees to attend closed-door meetings to hear anti-union propaganda. In 70 per cent of organising campaigns in the manufacturing sector, employers threaten to move the plant if the union wins. Thirty percent of employers fire pro-union workers. Unions frequently establish initial majority support among a workforce, only to see it erode under employer threats. According to the survey, in 91 per cent of the union recognition petitions filed with the NLRB as a prerequisite to an election, a majority of employees indicated they wanted a union. However, unions were victorious in only 31 per cent of these campaigns. In addition, employers often challenge the results of union elections, which can delay union representation and contract negotiations for several years.

Bad-faith bargaining: Even after a union becomes certified as the exclusive representative of the workers, many employers engage in bad-faith bargaining in order to prevent the union from winning a first contract. As a result, 45 per cent of all attempts at winning a first contract fail.

Justice ineffective: Remedies for intimidation and coercion, such as the illegal firing of workers who seek to form unions and bargain collectively, are both limited and ineffective. According to a recent study, as of the end of Fiscal Year 2006 cases identified by the NLRB itself as raising significant labour law issues took an average of 1,312 days to decide, while other cases took 824 days. Many employers who violate labour laws are never punished. Even when they are, the penalties are too weak to deter them from doing it again. According to Human Rights Watch: "Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business, well worth it to get rid of organising leaders and derail organising efforts". According to Cornell University research, one quarter of private sector employers fire at least one worker during union organising campaigns. Another recent study estimated that "almost one-in-five union organisers or activists can expect to be fired as a result of their activities in a union election campaign."

Rash of NLRB Decisions Further Erode Workers' Rights in 2007: In 2007, the NLRB intensified its assault on workers' rights by further narrowing the Act's coverage, withdrawing its protections, and weakening its already ineffective remedies. These efforts attracted national attention in September when the Board issued 61 decisions, approximately 20 percent of its annual total, most of which reflect a blatant anti-worker, anti-union and anti-collective bargaining bias. In these highly divided, partisan decisions, dubbed the "September Steamroll," the Board:

  • Made it significantly harder for workers who were illegally fired or denied employment to recover back pay;

  • Made it a certainty that employers who violate the Act will incur only the slightest monetary loss and be required to undertake as little remediation as possible;

  • Made it harder for workers to achieve union recognition without being forced to endure the hostile, divisive, delay-ridden NLRB representation process. In the Dana Corporation, the Board tossed out a decades-old rule that allows an employer and union, following voluntary recognition, a reasonable period of time to negotiate a collective bargaining agreement without challenge to the union's majority status, by crafting a new rule that allows a mere 30 percent of the workers to force an NLRB election. At the same time, the Board did just the opposite for employers who wish to get rid of an incumbent union;

  • Made it easier for employers to deny jobs to workers who have exercised their legal right to strike;

  • Made it easier for employers to file lawsuits in retaliation for protected union activities and to punish workers and their unions for their lawful, protected conduct;

  • Made it easier for employers to discriminate against employees and job applicants who are also union organisers even though the U.S. Supreme Court has specifically held that such workers are employees entitled to the Act's protections.

Through its decisions, this Board has redirected the course of the Act away from its original purposes of fostering workplace democracy and redressing economic inequality and, instead, toward a regulatory regimen that elevates the rights of employers seeking to establish union-free workplaces over the rights of workers. Fewer workers have fewer protections as this Board strips away the rights guaranteed by the National Labour Relations Act and destroys the national policies it enshrines.

Verizon settles charges on coercion and spying: Several hundred technicians at Verizon Business, the former MCI, have been organising with the Communications Workers of America (CWA) and International Brotherhood of Electrical Workers (IBEW) throughout the Northeast and Mid-Atlantic regions of the U.S. They have attempted to gain representation based on majority union support, but Verizon has refused to recognise the union.

Supported by Verizon's unionised employees, the technicians at Verizon Business (a division of Verizon Communications) are fighting a battle against Verizon's campaign of intimidation and harassment.

In Pennsylvania, the NLRB issued a complaint charging Verizon Business with "interfering with, restraining and coercing employees in the exercise of their right" to join a union. The company was ordered by the NLRB to post notices affirming the workers' rights to organise and declaring that it will no longer engage in coercive threats to prevent workers from unionising.

In New York, the NLRB charged Verizon Business with violating the law in its efforts to suppress union activity. As part of that settlement, Verizon Business was forced to post a notice agreeing to respect the law, not to spy on pro-union workers, and to allow workers to post union literature. The company also agreed to rescind any warnings to pro-union workers about reprisals for their activities.

Resurrection Health Care: Resurrection Health Care (RHC) is the largest Catholic health care system in Illinois; an eight-hospital and 10,000 plus employee corporate health care concern with revenue over $1 billion a year. In recent years the system has undergone a systematic programme of corporatisation, including cutting budgets for patient care.

In 2002, 10,000 RHC employees began exercising their right of freedom of association by seeking representation by the American Federation of State, County and Municipal Workers (AFSCME). In response, RHC began a campaign of intimidation and harassment of union supporters.

During 2007, the union continued to press its case for a dialogue about workers' issues at Resurrection, especially with Catholic authorities in Chicago. Resurrection management continued to refuse to dialogue with the union.

The company has settled 14 different unfair labour practice complaints since the workers started their organising campaign. In August 2007, Resurrection Health Care settled a complaint alleging violations of federal labour laws. The most recent settlement stemmed from an incident on 1 June 2007 in which a supervisor called a union activist into a closed-door meeting and interrogated the employee about circulating a petition to improve wages for patient-support staff and interfered with her right to further circulate the petition.

In September, the Illinois Department of Labour determined that Resurrection Health Care owes a total of $381,000 in back wages to its home health employees for failing to pay overtime. Despite repeated rulings in favour of the home health employees, the company has successfully delayed paying its workers by resorting to protracted litigation tactics.

Construction workers in the southwest escalate their effort for union representation: The Sheet Metal Workers and the International Union of Painters, with the full support of the AFL-CIO, are waging the Building Justice campaign to raise working standards in the residential construction industry, particularly in the southwest region of the U.S. The Sheet Metal Workers have focused on Chas Roberts Air Conditioning in Arizona, the largest residential heating and air conditioning contractor in the state. After a 50-year collective bargaining relationship with the union, the company abrogated the agreement and hired union-busting lawyers. The NLRB issued a complaint over the company's failure to honour the agreement and its harassment of workers. In addition, the workers have had to go to court to receive owed overtime pay.

In addition to the subcontractors, the campaign is also focused on a major home developer, Pulte Homes. This company is named as a defendant in the Nevada lawsuits. Pulte has also been involved in more than one incident where striking workers were targeted by industrial water trucks on the company's housing tracts and repeatedly doused with high-pressure water.

Native American-owned casino resisting employees' vote for union: In November, 2007 dealers at Foxwoods Resort Casino, the largest private employer in the state of Connecticut, voted overwhelmingly in favour of union representation with the United Auto Workers (UAW). The casino, with some 2,600 dealers, is owned by the Mashantucket Pequot tribe, and the victory was the first since a federal court ruled in February 2007 that the National Labour Relations Act applies to tribal casinos.

Rather than respecting the 1,289-852 vote for the union by entering into bargaining for a first contract, Foxwoods instead filed objections to the election with the National Labour Relations Board as a delaying tactic. Foxwoods claims it is not subject to the NLRB's jurisdiction, relitigating the sovereignty question settled last February.

Drug store warehouse workers want a fair process: The 600 workers at Rite Aid's distribution center in Lancaster, California, began organising in March 2006 to join the International Longshore and Warehouse Union (ILWU). They were fed up with mandatory overtime piled on top of 10-hour shifts and with enduring unacceptable working conditions.

Rite Aid negotiates with unions that represent workers in a wide range of their operations. This did not stop the company from launching a union-bashing effort that led to a 10-month investigation by the National Labour Relations Board.

In April 2007 the NLRB issued a complaint alleging 49 violations of the NLRA, including firing, threatening and interrogating union supporters. Rather than face an NLRB hearing, Rite Aid settled in May 2007. The company had to rehire two of the fired union supporters, and post a notice in the plant for 60 days informing workers about their rights under labour law. It never had to admit wrongdoing.

Rite Aid has since fired several more union supporters and hired large numbers of new workers for jobs normally done by temporary workers. The ILWU filed more charges with the NLRB against Rite Aid's vicious anti-union campaign. The ILWU asked the NLRB to require the company to meet several conditions to guarantee that workers get a fair vote. The Board refused the request and ordered an election to take place on 14 March 2008.

Teachers lose more than homes in Hurricane Katrina: Hurricane Katrina devastated New Orleans in August 2005, and before the waters receded, the government authorities unleashed a massive school privatisation and union-busting agenda on the city. This resulted in the summary dismissal of thousands of teachers, paraprofessionals and clerical staff – most of whom are African-American – the takeover of the majority of schools by the state of Louisiana, imposition of privately run charter schools on the city, and the cessation of collective bargaining coverage for the city's teachers. The Orleans Parish School Board (OPSB) placed 7,500 school employees, including 4,500 teachers, on unpaid Disaster Leave without pay, and subsequently authorised a massive reduction-in-force, in essence firing the teachers. In June 2006, the OPSB refused to extend its contract with the United Teachers of New Orleans (UTNO).

New Orleans' teachers had been represented by UTNO, which is an affiliate of the American Federation of Teachers (AFT) and the first, in 1974, to win collective bargaining rights for educators teaching in New Orleans public schools.

In November 2005 the state legislature authorised a new Recovery School District (RSD) to take over more than 100 New Orleans schools. RSD teachers are not covered by collective bargaining agreements and are often employed on a year-to-year basis, lacking basic job security. The OPSB and the RSD also converted many schools to charter status and prohibited employees of these schools from being represented by the teachers union in collective bargaining.

After teachers, paraprofessionals and secretaries in what was left of the OPSB system waged a fight to win back collective bargaining rights, the OPSB has returned to the negotiating table, though an agreement has not yet been concluded. In the RSD system, in 2006 and 2007, UTNO successfully reorganised more than 1,000 teachers and other school employees in the non-charter schools. However, RSD refuses to recognise UTNO as the representative of its teachers and school employees. UTNO is working closely with charter school teachers who are fighting for a union at their worksites and has launched a campaign to organise teachers and school employees at such schools.

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