2009 Annual Survey of violations of trade union rights - USA
|Publisher||International Trade Union Confederation|
|Publication Date||11 June 2009|
|Cite as||International Trade Union Confederation, 2009 Annual Survey of violations of trade union rights - USA, 11 June 2009, available at: http://www.refworld.org/docid/4c52cabf1e.html [accessed 30 April 2017]|
|Disclaimer||This 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.|
ILO Core Conventions Ratified: 105 – 182
The National Labor Relations Act restricts union rights in violation with minimum international labour standards. 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
Freedom of association: The National Labor Relations Act (NLRA) is the private sector 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.
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 Labor 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 the federal level: In the public sector, approximately 40% of all workers are still denied basic collective bargaining rights. While the Federal Labor 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 the 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, and the terms and conditions of employment subject to collective bargaining may be restricted by law. 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, Defense 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 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 organization." 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 mutual aid and protection. 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 (EFCA) passed by the U.S. House of Representatives in 2007 and gained a majority support in the U.S. Senate before it was blocked by a Republican filibuster. The Employee Free Choice Act helps to level 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. It will be reintroduced in 2009.
Trade union rights in practice and violations in 2008
Background: In November 2008, Illinois Democratic Senator Barrack Obama was elected President of the United States.
Anti-Worker National Labor Relations Board: John Sweeney, President of the AFL-CIO, has stated: "The function of the Labor 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 Labor Board has become nothing more than a shill for corporate special interests and it's time for it to be closed for renovation."
Union-busting consultants: A US$4 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.
Anti-union terminations, meetings and threats: A 2005 survey, carried out by the University of Illinois and commissioned by American Rights at Work, shows that 91% 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% 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, harassment and coercion. According to the survey, in 91% 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% 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. 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 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.
CLEAN car-wash campaign seeks to clean up dirty industry: In March 2008, Los Angeles area car-wash workers began publicly organising with the Carwash Workers Organizing Committee (CWOC) of the United Steelworkers. Since then, the owners of one area carwash where workers have been actively organising have fired three union supporters who advocated publicly for better working conditions. The NLRB filed almost a dozen complaints against the owners for their retaliatory behaviour in fall 2008. A trial was scheduled for February 2009, but there have already been delays. The United Steelworkers and the AFL-CIO joined a coalition of organisations known as the Community-Labor-Environmental Action Network (CLEAN), to support the car-wash workers. A report released by CLEAN found that exploitation of car-wash workers in the largely underground industry is rampant. Violations include underpaying workers, hiring minors, operating without workers' compensation insurance, and denying workers meal and rest breaks.
Verizon business workers win union recognition and first contract: Several hundred technicians at Verizon Business have united in the Communications Workers of America (CWA) and International Brotherhood of Electrical Workers (IBEW) throughout the Northeast and Mid-Atlantic regions of the US.
In early 2007, the techs achieved support from a majority of their co-workers. They received strong support from their elected officials and the rest of the labour movement. Most significantly, they built unity with Verizon "core company" union members whose contract with Verizon East expired on 2 August 2008.
Core company workers and their union leaders made it a major issue while bargaining for a new contract. With an arbitration case pending charging that Verizon Business was doing bargaining-unit work covered by contract, the company agreed to recognise the techs and negotiate a new contract. Their new agreement went into effect on 28 December. About 600 techs are covered by the new contract.
There are thousands of Verizon Business workers throughout the rest of the country. Efforts are underway now by the newly organised Verizon Business techs to reach out to their co-workers about the benefits of uniting in a union.
Resurrection Health Care: Resurrection Health Care (RHC), the largest Catholic health care system in Illinois, and the second-largest health care system in the Chicago area, has undergone a systematic program of corporatisation leading to deteriorated working conditions and patient care. In 2002, 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, including retaining the services of a union-busting law firm, questioning employees about their support for the union in closed-door sessions, and holding mandatory meetings in which management spoke against the union and refused to allow union supporters to speak.
During 2008, workers steadfastly continued their fight for union representation. The six-year-long struggle at Resurrection has become a prime example of the need for EFCA and labour law reform.
Construction workers in the Southwest escalate their effort to win union recognition: The Sheet Metal Workers and the International Union of Painters and Allied Trades, 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 US. 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.
Immigrant painters in the Phoenix Valley and Las Vegas area are attempting to organise at a number of companies. Federal wage and hour lawsuits have been filed against several of these contractors. Workers have also rallied and done outreach to politicians in an effort to secure a safer working environment.
In addition to the subcontractors, the campaign is also focused on a major home developer, Pulte Homes. Pulte has 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. Moreover, its employees often harass union supporters who do informational leafleting at Pulte developments and seek to deny them their democratic right to freedom of speech.
Drugstore warehouse workers frustrated by Rite-Aid's refusal to bargain in good faith: A majority of workers at Rite-Aid's Lancaster CA distribution centre voted in March 2008 to form a union with the International Longshore and Warehouse Union (ILWU). The company conducted an anti-union campaign that included harassment, threats and unjust firings. Prior to the election, the NLRB issued a complaint alleging 49 violations of the NLRA. A settlement of the charges resulted in the March election.
Since the union victory in March, Rite-Aid has fired about 50 employees at the Lancaster distribution centre. Management has cut back on permanent workers' hours, while keeping temporary and contracted workers on the payroll.
On 6 August 2008, the union charged that Rite-Aid has unilaterally changed the terms and conditions of employment of employees by terminating their employment or imposing discipline short of termination without providing the union with notice and opportunity to bargain in advance of making these unilateral changes.
On 3 December 2008, the union also charged that Rite-Aid has unilaterally changed the terms and conditions of employment of employees by reducing the hours of full time employees below 40 hours per week, laying employees off and reassigning other employees to perform the jobs of laid-off employees while retaining supervisors and temporary employees to perform the same work.
The ILWU has requested injunctive relief for both charges under Section 10(j) of the NLRA. A decision from the NLRB on the charges is pending.