Freedom of association rights problems

(This is part two of my Freedom of association frustration post.)

On June 20, 1964, three courageous young civil rights workers drove into Neshoba County, Mississippi to investigate the burning of an all-black congregation church where just a month earlier they had urged the congregants to register to vote. Michael Schwerner, James Chaney and Andrew Goodman never left Neshoba County alive. The day after they arrived, on Father's Day, June 21, they were murdered (Chaney was beaten and tortured before being murdered) by depraved racists and then buried in an earthen dam on a farm six miles northeast of the city of Philadelphia, Mississippi. (A Neshoba County deputy sheriff and 17 others, all Ku Klux Klan members, were indicted for the crime; seven were convicted in 1967 and an eighth in 2005.)

On March 1, 1973, a little less than nine years after their murder (and three years after the seven indicted Klansmen finally went to prison for their involvement in this crime) I drove into Philadelphia, Mississippi to help organize production and maintenance workers at an electrical manufacturing plant there. It was my first organizing assignment with the International Union of Electrical, Radio and Machine Workers of America, AFL-CIO (IUE), and unlike Schwerner, Chaney and Goodman, some months later I got to drive back out of Neshoba County again.

In 1973 the IUE (now merged with the Communications Workers of America) had hired me and about 11 or 12 others from around the country to serve on their recently-created Organizing Task Force. Our principle job on that task force was to organize "runaway shops," that is, factories that had closed their northern IUE-represented shops and moved lock, stock and barrel to the south for the purposes of taking advantage of low-wage southern labor and opening up anew as a non-union entity. As I recall it, that electrical manufacturing plant in Philadelphia, MS wasn't one of the runaways, but my experience during our organizing campaign there nevertheless served as a real awakening to me in terms of the harsh and frustrating worlds of civil rights and union organizing.

As I cited in my earlier post, the first section of the National Labor Relations Act (NLRA) in part states that it is the public policy of the United States to encourage the practice and procedure of collective bargaining and to protect the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection. Oh, were it so.

In spite of that righteous and noble policy, the truth is that with near impunity employers spy on, threaten, harass, intimidate, coerce, discipline, discriminate against, and fire workers for their support of or involvement in forming or joining a labor organization. Employers also throw up numerous phony legal and quasi-legal issues that serve to intentionally and interminably delay and otherwise thwart the holding of a secret-ballot union representation election for the workers. Employers get away with doing all these things and much more because for the most part the law and the federal agency created for effectuating the law's purpose, the National Labor Relations Board (NLRB), long ago ceased to fully function as intended and called for under the law's stated policy.

In 2000, the world's preeminent human rights organization, Human Rights Watch (HRW), issued a report of their research into attempts by American workers to form unions and bargain with their employers. Their research showed that "freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it." Some of Human Rights Watch's principal findings based on their research into this issue include:

Finding: Delays in NLRB and Court Procedures
Delays in the U.S. labor law system arise first in the election procedure. NLRB elections take place at least several weeks after workers file a petition seeking an election. In many cases, the election can be held up for months by employers who challenge the composition of the "appropriate bargaining unit."

An employer can also file objections to an election after it takes place, arguing that the union used unfair tactics. It takes several months to resolve these objections. But even when the NLRB rules in workers' favor and orders the company to bargain with the union, the employer can ignore the board's order. This forces workers and the NLRB to launch a new case on the refusal to bargain, often requiring years more to resolve in the courts. In many of the cases studied for this report, workers voted in favor of union representation years ago, but they are still waiting for bargaining to begin while employees' appeals are tied up in court.

Long delays also occur in unfair labor practice cases. Most cases involve alleged discrimination against union supporters or refusals to bargain in good faith. Several months pass before the cases are heard by an administrative law judge. Then several more months go by while the judge ponders a decision. The judge's decision can then be appealed to the NLRB, where often two or three years go by before a decision is issued. The NLRB's decision can then be appealed to the federal courts, where again up to three years pass before a final decision is rendered. Many of the workers in cases studied here were fired many years earlier and have won reinstatement orders from administrative judges and the NLRB, but they still wait for clogged courts to rule on employers' appeals.

Finding: Discrimination Against Union Supporters
Firing or otherwise discriminating against a worker for trying to form a union is illegal but commonplace in the United States. In the 1950s, workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In the 1960s, the number climbed into the thousands, reaching slightly over 6,000 in 1969. By the 1990s more than 20,000 workers each year were victims of discrimination for union activity - 23,580 in 1998, the most recent year for which figures are available.

An employer determined to get rid of a union activist knows that all that awaits, after years of litigation if the employer persists in appeals, is a reinstatement order the worker is likely to decline and a modest back-pay award. For many employers, it is a small price to pay to destroy a workers' organizing effort by firing its leaders.

Finding: "Predicting" Reprisals
Under U.S. law, employers and anti-union consultants they routinely hire to oppose workers' organizing have refined methods of legally "predicting" - as distinct from unlawfully threatening - workplace closures, firings, wage and benefit cuts, and other dire consequences if workers form and join a trade union. A "prediction" that the workplace will be closed if employees vote for union representation is legal if the prediction is carefully phrased and based on objective facts rather than on the employer's subjective bias.

This fine distinction in the law is not always apparent to workers or, indeed, to anyone seeking common-sense guidance on what is allowed or prohibited. Unfortunately for workers' rights, federal courts have tended to give wide leeway to employers to "predict" awful things if workers vote for a union.

One prediction a court found to be "carefully phrased" was made by the owner of an Illinois restaurant where workers sought to form a union and bargain collectively. In a tape-recorded speech in a captive-audience meeting the owner stated, "If the union exists at [the company], [the company] will fail. The cancer will eat us up and we will fall by the wayside . . . I am not making a threat. I am stating a fact. . . . I only know from my mind, from my pocketbook, how I stand on this." The NLRB found this statement unlawful. A federal appeals court reversed the board, finding the employer's statement a lawful prediction that did not interfere with, restrain, or coerce employees in the exercise of the right to freedom of association.

At an Illinois auto parts plant where workers began organizing, a supervisor told workers, "I hope you guys are ready to pack up and move to Mexico." Again, the NLRB found that the statement was a plant closing threat. And again, the appeals court overturned the finding by the NLRB. The court said the statement was "a joke, not a threat."

Finding: Forced Attendance at Captive-Audience Meetings
Almost without limits, employers can force workers to attend captive-audience meetings on work time. Most often, these meetings include exhortations by top managers that are carefully scripted to fall within the wide latitude afforded employers under U.S. law - allowing "predictions" but not "threats" of workplace closings, for example -to deter workers from choosing union representation. Employers can fire workers for not attending the meetings. They can impose a "no questions or comments" rule at a captive-audience meeting, and discipline any worker who speaks up.

Finding: Special Vulnerability of Immigrant Workers
International human rights principles apply to all persons regardless of immigration and citizenship status. In the United States, Human Rights Watch found workers' rights violations with particular characteristics affecting immigrant workers in nearly every economic sector and geographic area examined in this report. For many, the vulnerability of their undocumented status and related fear of deportation are the most powerful forces inhibiting their exercise of the right to organize and bargain collectively.

During NLRB election campaigns employers commonly threaten to call the Immigration and Naturalization Service (INS) to have workers deported. Immigrant workers are often afraid to come forward to file unfair labor practice charges or to appear as witnesses in unfair labor practice proceedings because they fear their immigration status will be challenged.

Finding: Even Legal Immigrants Unprotected
About 30,000 temporary agricultural workers enter the United States each year under a special program called H-2A giving them legal authorization to work in areas where employers claim a shortage of domestic workers. H-2A workers have a special status among migrant farmworkers. They come to the United States openly and legally. They are covered by wage laws, workers' compensation, and other standards.

But valid papers are no guarantee of protection for H-2A workers' freedom of association. As agricultural workers, they are not covered by the NLRA's anti-discrimination provision meant to protect the right to organize.

H-2A workers are tied to the growers who contract for their labor. They have no opportunity to organize for improved conditions and no opportunity to change employers to obtain better conditions. If they try to form and join a union, the grower for whom they work can cancel their work contract and have them deported.

Finding: Surface Bargaining, Weak Remedies
Even after workers form a union and bargaining begins, employers can continue to thwart workers' choice by bargaining in bad faith - going through the motions of meeting with the workers and making proposals and counterproposals without any intention of reaching an agreement. This tactic is called "surface bargaining." The problem is especially acute in newly organized workplaces where the employer has fiercely resisted workers' self-organization and resents their success.

Finding: Nullification of the Right to Strike by the Permanent-Replacement Doctrine
Under U.S. labor law, employers can hire new employees to permanently replace workers who exercise the right to strike. This doctrine runs counter to international standards recognizing the right to strike as an essential element of freedom of association. Considering the U.S. striker replacement rule, the International Labor Organization's Committee on Freedom of Association determined that the right to strike "is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally" and that permanent replacement "entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights."

Despite the fact that a majority of the production and maintenance workers in that Philadelphia, Mississippi electrical manufacturing plant signed a card authorizing the IUE to serve as their bargaining agent, they didn't win their secret-ballot union representation election. And the reason they didn't is because that employer engaged in all of the violations of worker rights described in these HRW findings and then some, including discrimination and harassment against African American and Native American workers for their support of the IUE, and physical intimidation of workers and the organizing staff. (I don't recall there being any authorized or unauthorized immigrants working at that plant during that organizing campaign, but there is no doubt that employer would have readily engaged in the conduct described by HRW in their findings relative to immigrant workers had there been any of them.)

During my close to 30-year career as a labor union representative, virtually every union representation election I personally worked on or had intimate knowledge of was permeated with these and numerous other employer violations of workers' rights to organize and bargain collectively. Such violations are not isolated instances; they are the core and substance of management's massive endeavors to ensure their employees do not form or join a labor union. Long building and intense worker and union frustration levels with this situation have resulted in tactics designed to avoid using the NLRB and in efforts to reform the law to return it to its intended purpose.

To be fair, there are agents, attorneys, administrative law judges and board members of the NLRB that do excellent work in terms of the intent and purpose of the law, and many workers harmed by their employer's unfair labor practices do find some relief, albeit delayed and inadequate, through NLRB procedures. But, on a larger scale, that agency and the law it administers no longer do the job they are supposed to.

On paper, American workers have the human and legal right to represent themselves in their workplaces. In real life, however, they do not have a free and fair means for exercising their right to organize and bargain collectively. The law and process fails them and that reality needs to change. A current proposal before Congress to do just that will be the topic of my next post.


In memoriam:

(A good introduction to this civil rights history is here and here.)