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2007 Annual Survey of violations of trade union rights - USA

Publisher International Trade Union Confederation
Publication Date 9 June 2007
Cite as International Trade Union Confederation, 2007 Annual Survey of violations of trade union rights - USA, 9 June 2007, available at: http://www.refworld.org/docid/4c52ca04c.html [accessed 24 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: 295,000,000
Capital: Washington
ILO Core Conventions Ratified: 105 – 182

Effective union busting campaigns mean that many union organising attempts fail despite initial support from a majority of workers. Over 30 million workers are still denied basic collective bargaining rights by law, including 40 per cent of federal public sector workers. Millions more were deprived of organising and bargaining rights in 2006 following an National Labour Relations Board ruling that vastly expanded its interpretation of the term "supervisor". It is hoped that the Employee Free Choice Act awaiting consideration by the US Senate at the time of writing, will significantly strengthen basic trade union rights.

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 per cent 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.

"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. It stipulated, however, that any new system maintain the right of employees to join unions and the right of unions to bargain collectively. Both departments misused this authorisation to propose a new labour relations system that virtually eliminated collective bargaining. In 2005 and 2006, U.S. courts struck down both labour relations systems.

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 stating that they "shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organisation." 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." 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."

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, passed by the U.S. House of Representatives and pending before the U.S. Senate at the time of drafting the Survey, is the first legislation to be proposed in 30 years that could lead to a real expansion of workers' rights in the private sector in America. 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

Anti-worker government: John Sweeney, President of the AFL-CIO, has stated that: "The present administration is the most anti-worker government since Herbert Hoover. It has stripped 40,000 of its own employees of the freedom to bargain collectively, and threatened many more workers' freedom to form a union."

Union busting consultants: An entire 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 survey into employer behaviour during organising campaigns was carried out by the University of Illinois and commissioned by "American Rights at Work". The results, published in 2005, show 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, 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.

Graduate teaching assistants denied bargaining rights: In 2000, in a case involving New York University, the NLRB ruled that graduate teaching assistants are employees within the scope of the National Labor Relations Act and therefore have the right to engage in collective bargaining with their employer. In 2004, largely as a result of the concerted efforts of major American universities, joined by anti-union groups, the Board – now dominated by Republican members appointed by the Bush administration – overturned that decision and held that graduate teaching assistants and research assistants are not employees under the NLRA because they are primarily students, thereby nullifying their bargaining rights. The impact of that decision has stifled organising for these workers, particularly at institutions such as Yale University, University of Pennsylvania, Tufts University, and Brown University, where union organising drives were already in progress, along with legal challenges by the institutions.

In contrast to the NLRB's denial of collective bargaining rights at private schools, graduate students in public universities often have the right to organise and bargain under state public sector collective bargaining statutes. The oldest such unit is at the University of Wisconsin.

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. The most recent statistics show that a backlog of some 14,588 cases of unfair labour practices by employers were pending in 2005. Workers waited a median of 659 days from the filing of a charge until the NLRB resolved a case, discouraging many from invoking the Board's procedures to protect their rights. 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. A study published in January 2007 by the Center for Economic and Policy Research on illegal firings during union election campaigns 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."

NLRB denies millions of employees the right to engage in collective bargaining in 2006: Section 2(3) of the NLRA excludes "supervisors" from the definition of employees who have the rights of freedom of association and collective bargaining under the Act. Section 2(11) of the NLRA defines supervisors as " any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them . . . ." (emphasis added).

In three related cases known as the "Oakwood Trilogy", the NLRB in 2006 expanded the interpretation of "supervisor" under the NLRA by creating new, sweeping definitions of the statutory terms "assign" and "responsibly to direct," thus depriving workers who are not supervisors of their organising and bargaining rights. Under the new definition, employers can classify or reclassify as "supervisors" employees with minor or sporadic oversight over co-workers even when such oversight is far short of genuine managerial or supervisory authority. In addition, the Board held that an employee need not possess even these minor forms of authority on a full-time basis in order to be classified as a supervisor, so long as they have this authority on a "regular and substantial" basis. The Board defined "regular" to mean according to a set schedule or pattern and "substantial" to mean at least 10-15% of the employee's work time. The AFL-CIO has filed a complaint with the ILO Committee on Freedom of Association alleging that the Board's "Oakwood Trilogy" denies workers the rights of freedom of association and collective bargaining.

Voluntary recognition at risk: Since 1935, employers have been allowed to recognise and bargain with a union in the absence of an NLRB-conducted election, if the union can demonstrate majority support through cards signed by employees. As NLRB enforcement of worker rights becomes increasingly less effective, workers are struggling to win elections in the face of stiff and often illegal employer anti-union tactics. Although a recent survey found that 57 million non-union workers would vote for a union if they had a chance, only 70,000 workers in 2005 succeeded in gaining union representation through the NLRB election process. In this environment, voluntary recognition has become a critical tool to enable workers to organise outside of the NLRB election procedures that thwart their rights.

The legality of voluntary recognition agreements was challenged in 2004 by the NLRB decision to re-examine, at Dana Corporation and Metaldyne Corporation, the longstanding application of the principle whereby a voluntarily recognised union enjoys a presumption of majority status for a reasonable period of time. The board will also examine whether it is acceptable for the United Auto Workers (UAW) and Dana Corporation to have identified, in advance, certain conditions to include in a collective agreement once the union achieved majority status. An adverse decision by the Board, which was still considering the case in 2006, would cause major setbacks in the ability of workers to fulfil their rights of freedom of association and effective collective bargaining.

Violations in 2006

Background: In the mid-term elections in November, the Democrats won control of both the Senate and the House of Representatives. The vote was believed to be a sign of discontent with the Bush administration in general and the Iraq war in particular.

Communications company shifts jobs to non-union workers: Verizon Communications has accelerated its assault on workers' rights with its merger with non-union MCI, which has become a new unit called Verizon Business. Workers reported that Verizon is was shifting work away from union technicians employed in the Domestic Telecom segment of the company to non-union workers at Verizon Business. If this trend continues, it will clearly be seen as an attempt to significantly undermine the union's strength as the parties gear up for contract negotiations covering approximately 60,000 workers in 2008. Meanwhile, in the face of intimidation from management, technicians at Verizon Business are working to organise bargaining units with the support of unionised technicians from the Communications Workers of America and the International Brotherhood of Electrical Workers.

Blue Diamond again charged with dismissing workers for their union activities: A complaint was filed with the NLRB concerning two workers who were fired in September 2005 and May 2006 and one worker who was warned in January 2006 for union activity Blue Diamond Growers (BDG), an almond processing plant in Sacramento, California. A decision in this case was expected in spring 2007. In 2005, Blue Diamond had been found guilty by the NLRB of violating labour laws, including firing workers for trying to joining the International Longshore and Warehouse Union (ILWU), and was ordered to reinstate two workers.

Consolidated Biscuit: Consolidated Biscuit continues to fight workers' efforts to exercise their right of freedom of association at its plant near Toledo, Ohio. Ever since its workers began organising the company has intimidated workers into not voting for union representation, hiring union busting consultants and firing union supporters.

In January 2004, the NLRB ruled that Consolidated Biscuit's "egregious and widespread misconduct" demonstrated "a general disregard for the employees' fundamental rights,". The Administrative Law Judged (ALJ) cited numerous illegal actions by Consolidated Biscuit, including firing employees for union activity, instructing security personnel to call police at the first sign of union activity, erecting signs indicating video surveillance in areas where union supporters met, threatening to go bankrupt if workers voted for the union and requiring employees to remove from their clothing messages supporting the union. Consolidated Biscuit immediately filed exceptions to the decision, but the full NLRB has not acted on the appeal for more than two years. The fired workers are still out of work. In the meantime, the ALJ found the company guilty for firing another union worker, a machine operator, for his union activities.

Since BCTGM's first set of filings with the regional NLRB, the board has issued another 30 complaints and the union has filed 12 more charges. No hearing date has been set for those charges.

Resurrection Health Care found guilty of coercion against union organising: The American Federation of State, County and Municipal Workers (AFSCME) filed unfair labour practice charges in April 2006 on behalf of employees at two hospitals run by Resurrection Health Care (RHC) the largest Catholic health care system in Illinois. The union alleged that management vigorously interfered with its employees' efforts to organise a union, in direct violation of federal law. In two separate incidents at the two hospitals, according to the union's charge, supervisors prohibited employees from distributing pro-union literature to their colleagues during break times and in non-work areas.

The NLRB issued a complaint against RHC in three months later, alleging that Resurrection was violating federal labour law by "interfering with, and coercing employees in the exercise of the rights guaranteed" under the NLRA.

RHC has settled these charges. Under the terms of the settlement, Resurrection must post notices, based on its prior illegal conduct, that it will not 1) threaten employees with the loss of benefits if they vote for the union, 2) question them about their union sympathies, 3) ask them to sign a petition that they do not want a union and ask which of their co-workers support the union, and 4) maintain a rule against talking about the union at work during periods such as breaks and mealtimes.

Air-conditioning company fails to honour collective agreement and engages in union busting: After a 50-year collective bargaining relationship with the Sheet Metal Workers International Association (SMIA), the Chas Roberts Air Conditioning in Arizona abrogated the agreement and hired union-busting lawyers. The NLRB issued a complaint against the company over its failure to honour the agreement and its harassment of workers. In addition, the workers have had to go to court to receive the overtime pay the company owes them.

For more than 30 months, the workers and the union have waged a campaign to force the company to engage in collective bargaining. Health and safety is one of the biggest issues to be tackled: since 2003, the Occupational Safety and Health Administration (OSHA) has cited the company for 17 violations of the Occupational Safety and Health Act, four of them serious, and has collected thousands of dollars in fines.

Retaliation against teachers striking over failure to negotiate: Teaching assistants at New York University went on strike in November 2005 after two months in which the university refused to negotiate with the union. When the strike continued into the Spring 2006 semester, the university began to cut stipends and unilaterally transferred many of the strikers out of their teaching positions.

Anti-union scare campaign at Reynolds American tobacco company: At the request of the majority of workers at two Reynolds American tobacco manufacturing plants in Winston-Salem in North Carolina, the Bakery, Confectionery, Tobacco Workers and Grain Millers Union (BCTGM) and the Machinists and Aerospace Workers (IAM) began to organise jointly. Together, the two unions represent over 9,000 workers in the US tobacco industry. Although the majority of the 2,000 production and maintenance workers at the plants signed a petition in favour of union representation, the company opted to call for a ballot under the auspices of the NLRB. In the run-up to the ballot, on 11 May, the company conducted a hostile, anti-union scare campaign to pressure workers into rejecting union representation. They coerced and intimidated workers and resorted to misinformation and outright lying. Most significantly, they threatened to shut down Reynolds, which has been part of the Winston-Salem community for over 100 years, and move production to Mexico and/or Puerto Rico. The scare tactics worked. On 12 May Reynolds American proudly announced that a majority of workers had voted against union representation.

Mass dismissal of union members: Workers at the Krug-Mondavi vineyard voted to be represented by the United Farm Workers (UFW) in 1975. From that time on they had to fight to get and keep their UFW contract as the company sternly resisted union representation. When their latest UFW agreement expired on 31 December 2005, the winery refused to bargain with its workers over renewing their union contract, and in January 2006 announced it was turning over operations to a farm labour contractor. The UFW filed unfair labour practice charges with the Agricultural Labor Relations Board over bad faith bargaining and discrimination by the company in preventing workers from engaging in union activities. In July Krug-Mondavi fired all of the vineyard workers, while future work was offered to farm labour contractor workers. The firings occurred just after the state Agricultural Labor Relations Board told the winery it was filing a formal complaint against it. Many of the dismissed workers applied for jobs with the new contractor, Jack Neal and Sons, but none were hired despite their experience and qualifications. The union presumes the refusal was because of their union membership.

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