2010 Annual Survey of violations of trade union rights - USA

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

The law does not adequately protect workers' trade union rights, and provides the employers with vast freedoms. Union busting, anti-union campaigning and resistance to collective bargaining and bad-faith bargaining remain common practice amongst employers, this leading to double standards in foreign multinational companies such as Deutsche Telekom.

Trade union rights in law

While basic trade union rights are guaranteed, a number of problematic areas exist in the law. The National Labor Relations Act (NLRA), the private sector labour law, guarantees freedom of association but excludes public sector workers as well as many private sector workers from its scope. Furthermore, federal employees enjoy limited rights to organise, and public sector workers are only guaranteed freedom of association in some states. Workers are not adequately protected against acts of anti-union discrimination. While employers may not directly interfere with the employees' choice to join a union, they may discourage workers from joining by employing various tactics. Pursuant to a Supreme Court ruling in 2002, undocumented workers are not entitled to back pay or reinstatement for unfair labour practices. Also, the ongoing "War on Terrorism" has been used as a pretext to significantly roll back labour rights for employees of the U.S. government.

Furthermore, although collective bargaining is protected in the private sector, the right is restricted for public sector workers. While federal employees have the right to bargain collectively over certain items, it is limited by extensive management rights.

The right to strike is circumscribed by the employers' right to replace striking workers permanently. Federal workers are not allowed to strike, nor are most state employees. Finally, there are limitations on the ability of workers to engage in "concerted activity" such as intermittent strikes and secondary boycotts.

The Employee Free Choice Act was re-introduced in March to strengthen the protection of employees' right to organise, but was not adopted during 2009.

Trade union rights in practice and violations in 2009

Increased private-sector employers' anti-union campaigns: According to a May 2009 report from the American rights at work education Fund and Economic Policy Institute, in the last 20 years, the private-sector employer opposition to workers seeking their legal right to union representation has intensified. Anti-union campaigns including coercive and punitive tactics such as workers' threats, harassment, surveillance, and retaliation for supporting a union have increased. Employers also threaten employees with plant closure or even close plants. An analysis of the 1999-2003 data on NLRB election campaigns finds that: 63% of employers interrogate workers in mandatory one-on-one meetings with their supervisors about support for the union; 54% of employers threaten workers in such meetings; 57% of employers threaten to close the work-site; 47% of employers threaten to cut wages and benefits; and 34% of employers fire workers.

Reforms at the U.S. National Mediation Board: The U.S. National Mediation Board (NMB), the federal government agency that oversees labor-management relations in the rail and airline sectors, has proposed amending its election procedures to make it easier for workers to organize. It would permit a majority of workers who actually vote to decide the election and stop assigning "no" votes to workers who do not participate. As of this writing, the NMB has solicited public comment on the proposed rule change; after the comment period, a final rule will be issued.

The new rules would finally permit airline and rail workers to vote for unions under the same standards as other private sector workers (covered by the National Labor Relations Act). The AFL-CIO Transportation Trades Department and its 32 unions requested the NMB to allow airline and railroad workers to vote either "Yes" or "No" for union representation and to determine the outcome by a majority of the votes cast.

Union-busting consultants and US Chamber of Commerce's anti-union initiatives: A USD4 billion union-busting industry exists in the United States to defeat union organising drives through coercion and intimidation. Consultants employ a wide range of tactics, including many that skirt the law. Furthermore, the U.S. Chamber of Commerce, the national business lobbying organization, has always been campaigning against unions, fair labor practices, increases in the minimum wage, and legal protections. Unlike other anti-union organizations, this prominent lobbying force does not hide its alignment with big business. Among the Chamber's legislative priorities is opposition to the Employee Free Choice Act , which would strengthen labor law and provide workers with the right to union representation via the card check process when a majority present signed union authorization cards to their employers. On May 4, 2006, the Chamber sent a letter to all Republican members of Congress urging them to support the Secret Ballot Protection Act, which would outlaw union recognition through card check. The Chamber also operates a website urging its members to pressure Congress on the issue.

Double standards in foreign multinational companies: The failure of U.S. labor law to protect America's workers from pervasive union busting is often used by foreign companies operating in the United States. The same company, under two different systems of law, results in two very different situations for workers especially when labor laws are stronger in the companies' home countries.

Resistance to collective bargaining and 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. Under current law, if no contract is reached for 12 months, the union's status as bargaining representative can be challenged. As a result, 44% of all attempts at winning a first contract fail. Only one in seven organising efforts in which a petition is filed with the National Labor Relations Board (NLRB) achieve a first contract.

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. 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.

Construction workers struggle to form union in southwest U.S.: Immigrant painters and drywall finishers in the Phoenix Valley and the Las Vegas area, along with sheet metal workers in Arizona are organizing at a number of companies. In many cases, residential construction workers in this industry work under harsh working conditions (such as under a payment system called "piece rate," in which they are paid based on the amount of work performed and hence long hours) and face rampant wage and hours violations. Some have filed lawsuits against the contractors that employ them using not only the federal Fair Labor Standards Act to claim the wages legally owed them, but as well class action lawsuits. The later ensure that all their coworkers are automatically included in the claim. The residential construction workers have formed Building Justice, a partnership of the Sheet Metal Workers, International Union of Painters District Council 15, and the AFL-CIO, to help improve standards in their industry and return a sense of fairness and dignity to their jobs.

Drug store warehouse workers still fighting for first contract at Rite-Aid: Although Rite-Aid has a number of union distribution centers and many unionized stores, top management is continuing its aggressive interference with the workers and refuses to negotiate a fair contract. Since the union victory nearly two years ago, Rite-Aid has fired about 50 employees at the Lancaster distribution center. However, in June, all of the workers who were previously fired by the company were reinstated after the ILWU filed charges with the NLRB. Then, in September, Region 31 of the NLRB issued a complaint against Rite Aid based on the company's actions, and found that Rite Aid had been failing and refusing to bargain in good faith with its Lancaster work force, as required by federal labor law.

In March 2008 (see Annual Survey 2009 Edition), a majority of workers at Rite-Aid's Lancaster, California, distribution center voted to form a union with the International Longshore and Warehouse Union (ILWU). The company conducted a vicious anti-union campaign that included harassment, threats, and unjust firings. Prior to the election, the National Labor Relations Board (NLRB) had issued a complaint alleging 49 violations of the National Labor Relations Act (NLRA). A settlement of the charges resulted in the March election.

Carwash workers lead efforts to CLEAN up a dirty industry: Over the past year and a half, the United Steelworkers and the AFL-CIO have been working with a coalition of organizations known as the Community-Labor-Environmental Action Network, or CLEAN, to support carwash workers in Los Angeles who are organizing a union. The workers have formed the Carwash Workers Organizing Committee (or CWOC-USW).

The CLEAN Campaign also defended workers whose right to organize had been violated under the National Labor Relations Act. CLEAN filed charges with the National Labor Relations Board (NLRB) and reached a settlement, which included over USD50,000 in back pay for workers who were unjustly fired and a broad cease and desist order, used only against the most egregious labor law violators. The settlement achieved a dramatic victory for workers in an industry afflicted with sweatshop conditions.   

Airport screeners continue efforts to win 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 September 11. The ATSA gives the TSA administrator control over conditions of employment, including the right to bargain collectively. 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 organizing with 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.

In September, President Barack Obama nominated Erroll Southers to head the TSA. Although two Senate committees, Homeland Security and Commerce, approved Southers and sent his confirmation on to the full Senate for a vote, the process stalled when Republican Senator Jim DeMint of South Carolina placed a "hold" on the nomination. DeMint argued that if TSOs were granted collective bargaining, national security would be endangered. The AFL-CIO and the AFGE rejected those claims and called for the Senate to proceed with the confirmation process. However, Southers withdrew his name from consideration. At this writing, it is uncertain when Obama will nominate a TSA Administrator or if the Department of Homeland Security or the Obama Administration will grant collective bargaining in the interim.

Deutsche Telekom's U.S. labor practices: In December 2009, the American Rights at Work Education Fund issued a comprehensive report exposing a systematic campaign to prevent employees from forming a union by T-Mobile USA and its parent company, German telecommunications giant Deutsche Telekom (DT). The report, "Lowering the Bar or Setting the Standard? Deutsche Telekom's U.S. Labor Practices," presents overwhelming evidence that DT is guilty of operating by a double standard: The company respects workers' rights in Germany, where it cooperates closely with unions, but mistreats workers in the United States and interferes with their right to organize.

The disparities between employees of Deutsche Telekom on opposite sides of the Atlantic have led to an unprecedented partnership between U.S. and German workers. CWA and ver.di, which is Germany's largest union, have joined forces to create a new union known as TU to collectively advance fair treatment and collective bargaining for all DT workers.