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2012 Annual Survey of Violations of Trade Union Rights - USA

Publisher International Trade Union Confederation
Publication Date 6 June 2012
Cite as International Trade Union Confederation, 2012 Annual Survey of Violations of Trade Union Rights - USA, 6 June 2012, available at: http://www.refworld.org/docid/4fd8891ac.html [accessed 20 August 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: 313,840,000
Capital: Washington

ILO Core Conventions Ratified:

105 (Abolition of Forced Labour (1957))
182 (Worst Forms of Child Labour Convention (1999))

Reported Violations – 2012

Murders: none reported
Attempted Murders: none reported
Threats: none reported
Injuries: none reported
Arrests: none reported
Imprisonments: none reported
Dismissals: none reported

Documented violations – actual number of cases may be higher

Introduction

In 2011, in many states, conservative governors and legislators used budget deficits resulting from the financial crisis to justify efforts to cut public sector workers' wages and benefits and eliminate or restrict their collective bargaining rights. While these efforts were successful in several states, massive public protests, most notably in Wisconsin, gave evidence of strong public support for the right to collectively bargain. In the U.S. Congress, opposition to unions took the form of repeated attacks on the National Labor Relations Board. Employers were increasingly emboldened by the weak economic growth to use lockouts to pressure workers as well as to have recourse to temporary workers and subcontract work. With the help of a thriving union-busting consulting industry, employers continued to respond to union organising efforts with a barrage of anti-union tactics.

Background

Elections at the end of 2010 gave Republicans control of the U.S. House of Representatives and the majority of state legislatures and governorships.

The employer community in the US is extremely hostile to unions, and because employers are given wide latitude to oppose unionisation efforts and penalties for illegal retaliation against union supporters are weak, workers face enormous obstacles in forming unions. The percentage of private sector workers in unions has fallen to less than 7%, and although currently 37% of public sector workers are union members, elimination or curtailment of public sector bargaining rights is high on the agenda of conservative Republicans, who currently control the U.S. House of Representatives and the majority of state legislatures and governorships.

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.

Link to additional detailed information regarding the legislation on the ITUC website here

In practice

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 unremedied: 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), by excluding low-level supervisors from the protection of the National Labor Relations Act (2008) and by subjecting transit union officials to imprisonment, the union to fines in excess of USD1 million, and individual workers to financial penalties for engaging in a strike in violation of a state law prohibiting strikes by public employees (2011). None of these violations have been remedied.

Newly elected conservative majorities join with corporate allies to wage war on unions, collective bargaining and worker rights:

Elections in late 2010 that swept Republican Party conservatives into control of the U.S. House of Representatives and a majority of state legislatures and state governorships were followed in 2011 by an explosion of legislative initiatives. Those initiatives intended to weaken legal protections for workers against anti-union discrimination, limit or terminate collective bargaining rights for millions of public sector employees as well as eliminate important sources of financial support for trade unions and curtail their ability to advocate on behalf of their members in the political and public policy arenas.

A substantial percentage of these bills were drafted by the American Legislative Exchange Council (ALEC), a corporate-funded organisation whose "members" – some 2,000 conservative legislators and more than 300 of the world's largest corporations – meet together behind closed doors to develop and vote on model legislation sought by corporate interests that the legislators then introduce and promote in the US Congress and in state legislatures around the country.

In addition to weakening unions and rolling back worker rights, ALEC's agenda includes enactment of voter eligibility rules making it harder for minorities, the poor, students and the elderly to vote; reductions in and privatisation of public services; limitations on government regulation of commerce to protect consumers, the environment and public safety and health; and other measures to benefit particular industries and corporations that provide its corporate support.

Collective bargaining rights of public sector workers come under fierce attack:

In 2011, more than 800 bills seeking to eliminate or curtail collective bargaining for public employees were introduced in state legislatures, and a number of them became law.

The most notorious was legislation introduced in Wisconsin in February 2011. The legislation strips away most of public sector workers' bargaining rights, limiting bargaining to negotiations over wages only (subject to a cap based on inflation); prohibiting collective agreements of more than one year's duration; and requiring annual union recertification votes to determine if workers can continue to have union representation.

Despite massive citizen protests that brought out as many as 100,000 demonstrators at a time, attracted worldwide attention, and included a two-week occupation of the State Capitol, the bill was passed by the legislature in March and took effect three months later. Meanwhile, in Ohio, legislators enacted their own anti-collective bargaining law, also limiting public employee bargaining to wages only and, in addition, tightening prohibitions against public sector strikes and eliminating binding arbitration to resolve contract disputes. Public opposition to the Ohio law was so great that opponents were able to gather more than a million signatures on petitions to force a referendum on the measure. In November 2011, Ohio citizens voted by a substantial margin to repeal the law.

Teachers were a particular focus of anti-collective bargaining measures in 2011. In Idaho, legislation was enacted restricting bargaining rights for teachers to negotiations over wages and benefits, requiring all negotiated contracts to expire every year, and authorizing school authorities to unilaterally impose terms if no agreement has been reached by a specified date each year. A new law in Michigan prohibits teachers from bargaining over discharge or discipline policies, layoffs, performance evaluations or merit pay, and in Tennessee collective bargaining for teachers was effectively abolished.

Conservatives in Congress work to cripple government agency responsible for enforcing rights of private sector workers to organise and bargain collectively:

In the U.S. Congress, dozens of anti-union measures were introduced in the Republican-controlled House of Representatives. Many of them aimed specifically at curtailing the ability of the National Labor Relations Board (NLRB) to effectively enforce federal labour laws.

Among measures passed by the House of Representatives in 2011 that were pending before the U.S. Senate by the end of the year was a bill that would deny the NLRB authority to get workers reinstated where their employer has illegally eliminated or transferred work in retaliation for the exercise of protected rights. Another bill would prevent the agency from implementing new regulations intended to streamline the process leading up to union certification elections so as to limit opportunities for employer interference. Other measures introduced sought to cut off or sharply curtail funding for the agency.

Republican-controlled legislative committees also conducted nine official "investigative" hearings regarding actions by the independent agency and demanded the production of thousands of pages of documents and emails relating to cases decided by the agency with which business organisations disagreed. These actions were widely seen as an effort to intimidate agency personnel and prevent the agency from enforcing the law. In the Senate, the Republican minority unsuccessfully sought to block President Obama from filling vacancies on the NLRB so as to prevent the agency from functioning.

Measures to weaken unions financially and curtail their political influence gain traction in many states:

Republican legislatures also pushed to expand the reach of so-called "right-to-work" laws. Under those laws, unions – which are required by law to provide equal representation services to workers in the bargaining unit regardless of whether or not they are union members – are prohibited from charging service fees to non-members. Right to work laws provide financial incentives to workers not to join the union and pay dues, since by not joining they can receive the benefit of the collective agreement and grievance and other representation services from the union without having to share in the cost of those services.

In 2011, right-to-work bills that would apply to the private sector were introduced in 14 states. Right-to-work provisions applicable to public sector unions were enacted in Wisconsin and were part of the anti-collective bargaining bill enacted in Ohio but subsequently overturned by referendum.

In addition to the flurry of right – to – work bills, 2011 saw the introduction in dozens of states of so-called "paycheck protection" bills. Those bills, also drafted by the American Legislative Exchange Council (ALEC), were designed to make it difficult for unions to collect dues from their members, and to use dues from members for political or advocacy purposes.

With regard to public employees, these bills would prohibit state employers from agreeing to allow union members to pay their dues to the union through automatic payroll deductions – this either altogether or with respect to any portion of their dues that the union uses for political purposes.

With regard to private sector employers, the bills would not prohibit such payroll deductions (which are permitted under federal law) but would require that the individual employee reauthorise the deduction every year in order for it to continue. "Paycheck protection" provisions applicable to public employees were included in the Wisconsin law limiting collective bargaining and were enacted in Alabama with respect to teachers.

Government officials and candidates for office openly attack unions and union-represented workers:

During 2011, a number of high-ranking government officials and candidates for high office openly expressed their hostility to unions and workers' exercise of freedom of association.

The newly-elected Republican governor of South Carolina, for example, announced to the press that she was appointing a lawyer specialising in "union avoidance" to head the state's department of labor because "we're going to fight the unions and I needed a partner to help me do it." Notwithstanding that there are more than 59,000 union members in South Carolina, she subsequently declared in a televised address to the state legislature that her administration would "make the unions understand they are not needed, not wanted, and not welcome in the state of South Carolina."

Mitt Romney, the leading contender for the Republican presidential nomination, ran televised campaign ads in which he referred to the members of the National Labor Relations Board (NLRB), the government agency which administers the federal labour law, as "union stooges". He, and other Republican candidates for the presidency, repeatedly attacked unions and the NLRB during televised candidate debates.

Violations

ILO finds that New York State law banning and penalising strikes by public employees violates freedom of association:

In November 2011, the ILO Committee on Freedom of Association (CFA) found that the outright ban on public sector strikes under New York State's Taylor Law, as well as the punishments it imposes on what it considers "illegal strikes", including fines, loss of dues check off and imprisonment of union leaders, was violating freedom of association.

The Committee was acting on a complaint brought by the Transport Workers Union regarding punishments imposed on union officials and union members who engaged in a 60-hour transit strike in New York City in 2005, which included a USD 2.5 million fine on the union, an additional day's lost pay for each day each worker was out on strike, personal fines on the top three officers, jail time for the local union president, and an end to the union's ability to collect dues through payroll deductions for 18 months.

The Committee recommended that the U.S. government takes steps to bring the state legislation into conformity with freedom of association principles and to ensure that the union, its members and its officers are fully compensated for the sanctions imposed.

Illegal discrimination by employers against workers seeking to organise unions or otherwise engage in union activity remains widespread: The National Labor Relations Board (NLRB) reported in 2011 that in the year ending September 30, 2009, as a result of complaints brought to the agency, 1,549 workers who had been illegally discharged or denied employment because of their union activities were offered reinstatement. In addition, 15,554 workers received backpay totalling USD 76.8 million.

Experts consider these numbers to reflect only a portion of the total number of workers illegally terminated or discriminated against, since many workers never file charges.

Employers impose lockouts to weaken unions and force workers to agree to concessions:

Taking advantage of US laws that allow employers to lock out workers and continue to operate with replacement workers, employers in the U.S. are increasingly utilizing lockouts to force union workers to agree to management's demands for concessions at the bargaining table.

In 2011, thousands of U.S. workers were prevented from working because of lockouts imposed by their employers – many of them highly profitable and among them multinational corporations who would never engage in such conduct in their home countries.

In August 2011, American Crystal Sugar locked out 1,300 union workers at its seven plants in Minnesota, North Dakota and Iowa after workers voted to reject the employer's "final offer," which included concessions that would have greatly increased workers' costs for health care and given the company wide latitude to subcontract work. Talking to shareholders, American Crystal Sugar CEO compared the workers' collective agreement to a cancerous tumour that has "got to come out," notwithstanding that the company has been earning record profits under that agreement. As of the end of 2011, the lockout was still underway.

Another 1,050 union workers employed by Cooper Tire in Ohio at a tire plant in Ohio were locked out in November 2010 after they voted to reject a company contract proposal containing significant concessions. In 2008, workers at the Findlay plant gave up USD31 million in pay and benefits to help the then-struggling company to survive, and the State of Ohio provided USD2.5 million in subsidies. The now-profitable company, which has made more than USD300 million in profits since 2009, was demanding that employees pay significantly more for their health care and that the company have broad discretion to set wage rates, with lower wage rates and reduced pensions for new hires. The lockout was also still ongoing at the end of 2011.

In August 2011, 240 workers employed by Roquette America, a subsidiary of Roquette Frères in France, returned to work after a 10-month lockout imposed when workers refused to accept more than 130 concessionary proposals by the company. The proposals included a wage freeze, reductions in retirement benefits, additional costs imposed on workers for health care, and authority for the company to hire temporary workers without benefits. Following a global campaign that included the filing of complaints under the OECD Guidelines for Multinational Enterprises and the UN Global Compact, the parties were able to reach agreement, but only after the workers agreed to terms which included a substantially lower wage rate for all new hires.

Also in August, 228 union workers employed by Honeywell went back to work at a uranium enrichment facility in Illinois after being locked out for 14 months. In the agreement ending the lockout, Honeywell dropped its demands for increases in health care payments by current workers and elimination of retiree health benefits. The multinational corporation also agreed to modest wage increases, but new hires will be covered by a new pension system that will provide them with significantly lower retirement benefits.

Deutsche Telekom continues aggressive anti-union campaign at T-Mobile:

Deutsche Telekom, through its T-Mobile USA subsidiary, continued in 2011 its ongoing campaign to undermine and frustrate T-Mobile employees' efforts to obtain union representation and the right to collectively bargain.

Despite a demonstrated history of corporate responsibility in Germany, the company continued to employ a double standard in the US. It allows T-Mobile managers to engage in aggressive strategies to resist and interfere with union organising efforts, in furtherance of an acknowledged corporate goal of remaining "union free."

As detailed in a complaint filed against Deutsche-Telekom in July 2011, alleging violations of the OECD Guidelines for Multinational Enterprises, to which Deutsche-Telekom subscribes, T-Mobile has recruited and employed consultants who specialise in union-busting and trained managers to engage in surveillance of and to report on union activity by workers. It also forced workers to attend anti-union meetings conducted by their supervisors. This aimed to create a culture of fear in which workers do not dare to express support for unionisation for fear of losing their jobs or suffering other adverse treatment by T-Mobile.

This conduct has continued during 2011, with workers reporting being watched and spoken to if they accept union literature, having union literature discriminatorily removed from breakrooms while other reading materials remain, and other conduct designed to demonstrate management's hostility to unions and chill unionisation efforts.

The company anti-union tactics have been detailed in highly critical reports issued by Human Rights Watch and the American Rights at Work Education Fund.

Airport screeners finally get limited bargaining rights and a union, but not a collective agreement:

In February 2011, airport screeners employed by the Transportation Security Administration (TSA) who have been prohibited from collectively bargaining because of alleged terrorism concerns were finally granted a limited right to engage in bargaining by the Obama administration, although matters relating to pay, pensions, security policies, proficiency testing, job qualifications and discipline standards are specifically excluded from the scope of bargaining permitted.

In elections conducted later that spring, the 44,000 screeners voted by an overwhelming margin for union representation. However, by the end of 2011, negotiations had not progressed because of the government's refusal to consider the use of outside, neutral arbitrators to resolve disputes over disciplinary actions

Abuses continue in Los Angeles carwash workers' campaign:

Ongoing efforts to organise exploited car wash workers in California were boosted in 2011 when a car wash worker won USD80,000 in a lawsuit against a car wash worker for wage theft. It also led to the signing of the car wash workers' first collective agreement with a car wash owner. This agreement will provide a wage increase, health and safety protection, a grievance and arbitration system and protection against unfair dismissal.

The predominantly immigrant car wash workers have been organising since 2008 in an effort to end abuses in an industry where employers routinely violate basic employment laws, denying them rest breaks and access to shade and water, subjecting them to 10-hour workdays six days a week with no overtime pay, and exposing them to dangerous chemicals without protective gear. In some cases, the employers were refusing to compensate them beyond what they earn in tips. Efforts to organise have met with strong resistance from carwash owners, who have fired workers for engaging in organising activity.

Copyright notice: © ITUC-CSI-IGB 2010

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