At the same time, U.S. labor law "openly
conflicts with international norms and creates formidable legal
obstacles to the exercise of freedom of association" —
for example, in its exclusion of many public sector workers,
agricultural workers, domestic workers, so-called independent
contractors and former welfare recipients.
Many workers in the U.S. have rights to organize
and bargain under the National Labor Relations Act. But, the
report says, "The reality of NLRA enforcement falls far
short of its goals. Many workers who try to form and join trade
unions to bargain with their employers are spied on, harassed,
pressured, threatened, suspended, fired, deported or otherwise
victimized in reprisal for their exercise of the right to
freedom of association."
Penalties are virtually non-existent. If the
National Labor Relations Board decides a worker was fired
illegally because of union organizing, the guilty employer only
has to post a written notice promising not to repeat the illegal
conduct and give the victim back pay. "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 organizing leaders and derail workers’
organizing efforts," the report says.
"Any employer intent on resisting workers’
self-organization can drag out legal proceedings for
years," the report states further.
"I don’t know how the law in this country
can allow these maneuvers," Nico Valenzuela told
Human Rights Watch. Valenzuela and his co-workers at Acme Die
Casting organized into UE and faced years of legal delays in
efforts to achieve a first contract. Acme is one of two UE
examples among the case studies in Unfair Advantage.
The case studies look at the service sector
(several nursing homes and a hotel), food processing,
manufacturing, migrant agricultural workers and contingent
workers. Geographic diversity matches the range of sectors.
"The cases studied here offer a cross-section of workers’
attempts to form and join trade unions, to bargain collectively,
and to strike. These cases reflect violations and obstacles
workers met in the exercise of these rights," the report
These case studies are based on interviews with
workers, and occasionally managers (employers frequently
declined requests for comments), as well as records from
government agencies and courts. These examples are not isolated
exceptions, Unfair Advantage stresses.
Among the case studies are:
• In three
unrelated nursing homes in south Florida, unions saw organizing
campaigns routed because of massive violations of law, including
threats and firings. Employers have thwarted union attempts to
achieve first contracts following two election victories at
nursing homes; union leaders were fired in both cases.
Marriott Corp. reneged on an agreement to honor card-check
recognition when its San Francisco hotel opened in 1989;
court-ordered mediation led to a new card-check agreement in
1996. When an arbitrator certified that a majority of workers
had signed union cards, Marriott intensified an anti-union
campaign. Key activists were fired; other workers were
threatened with discipline if they talked about the union. The
case is still pending.
Smithfield Foods, at its immense hog-processing plant in Tar
Heel, N.C., engaged in numerous and massive unfair labor
practices in 1993-1994 and 1997-1998. The company’s efforts to
smash organizing included firing of key union activists,
intimidation, interference, coercion, threats and discrimination
— and the presence of police and sheriffs. The union lost the
election; immediately after, the police beat, handcuffed and
arrested a worker active in the union campaign.
• Like the
Tar Heel plant, Smithfield Foods workforce at the Wilson, N.C.
facility includes a number of single mothers eligible for
programs like food stamps. The company told them they would lose
their benefits if the union "pulled them out on
strike." Smithfield threatened, interrogated and spied on
workers, and fired five for their support of the union.
mostly African-American and female workers at Cabana Potato
Chips in Detroit are technically "temps" — even
those with many years of service — and are supplied to the
company by an agency with offices inside the plant. They accrue
no pension and are ineligible for unemployment compensation.
However, Cabana, not the temporary agency, ran the anti-union
campaign that defeated a union organizing drive which initially
enjoyed 70 percent support.
Industries engaged in massive lawbreaking at its New Orleans
shipyard. An NLRB administrative law judge found that management
applied stricter enforcement of work rules against union
supporters than opponents; transferred union supporters to more
difficult and dirtier jobs; threatened to withhold wage
increases; threatened to close the yard; interrogated and spied
on union supporters; threatened to fire union supporters; and
fired 28 union supporters. Avondale repeatedly defied the NLRB
— while receiving more than $5 million from the Department of
the Navy for expenses in its anti-union campaign. A new owner in
1999 agreed to recognize the union but refused to reinstate the
In the mid-1990s Precision Thermoforming and
Packing Inc. (PTP) employed more than 500 workers in a federal
"empowerment zone" in Baltimore. The company enjoyed
indirect state subsidies worth millions through a low-cost lease
of manufacturing space in a converted warehouse. A
plastic-packaging and shipping operation, PTP handled
flashlights, batteries and computer diskettes. The starting wage
was $5, with little chance for improvement. Since health
insurance cost employees $36 a week, most declined the offer.
There was no pension plan.
PTP workers contacted UE in 1995. One worker, Gilbert
Gardner, had previously been a UE member. "I remember
the UE was real democratic and close to the people," he
told Human Rights Watch.
The day after the NLRB hearing that set the
election date, PTP demoted Gardner, slashing his pay by 50 cents
an hour. "When I said I thought it was because of my union
work, they fired me for threatening a supervisor," Gardner
said. (The Maryland unemployment compensation commission found
no evidence of misconduct by Gardner and awarded him benefits.)
AND DIRTY TRICKS
PTP threatened: to close the plant if the union
won, to move the work to Mexico, that customers would pull their
business, to fire workers who went to union meetings, to fire
anyone who joined the union, to replace American-born workers
with foreigners if the union won, to transfer workers to
dirtier, lower-paying jobs if they supported the union.
The company interrogated workers about their
union sympathies and activities, told workers not to take union
flyers, asked employees to report to management on the
activities of their co-workers, stationed managers and security
guards (with walkie-talkies) to spy on union leafleting and
denied promotions to workers who supported the union.
Vietnamese immigrants, about 25 percent of the
hourly workforce at PTP, were supplied by a social service
agency and bused to the plant each day. The company held
separate captive-audience meetings for the Vietnamese workers.
On the afternoon before the election, UE supporters held a rally
at the plant gate. Bosses told the Vietnamese that the black
workers were "rioting" at the plant entrance and
hustled them out the rear exit.
Sixty percent of the workforce signed union
cards, but UE lost the election 168-226.
The Labor Board considered the company’s
behavior so outrageous that it ordered PTP to recognize and
bargain with UE. The NLRB also sought reinstatement and back pay
for those fired for union activity. PTP declared bankruptcy and
shut down its Baltimore plant.
workers who try to form and join trade unions to bargain
with their employers are spied on, harassed, pressured,
threatened, suspended, fired, deported or otherwise
victimized in reprisal for their exercise of the right to
freedom of association.’
The Human Rights Watch report Unfair
The Human Rights Watch study offers a number of
recommendations. Some are similar to (although others fall short
of) UE’s labor law reform program. All would help remedy the
current labor rights crisis.
• The U.S.
should recognize that its labor law shortcomings are human
rights issues. The NLRB should look to international human
• The U.S.
should ratify International Labor Organization Conventions 87
("Workers and employers... shall have the right to
establish and... join organizations of their own choosing")
and 98 ("Workers shall enjoy adequate protection against
acts of anti-union discrimination in respect of their
employment"). Human Rights Watch says "this would send
a strong signal to workers, employers, labor law authorities,
and to the international community that the United States is
serious about holding itself to international human rights and
labor rights standards as it presses for the inclusion of such
standards in new global and regional trade arrangements."
should enact legislation prohibiting the permanent replacement
of workers who exercise the right to strike," Unfair
Advantage recommends. The study points out that the U.S.
"is almost alone in the world" in allowing this
practice, which is used as an employer weapon in organizing and
collective bargaining as well as strikes.
the NLRB finds merit, workers fired during organizing
campaigns should be reinstated immediately. Victims of
company lawlessness should receive punitive damages; employers
who repeatedly violate labor law should pay substantial fines.
• The law
should be amended to allow workers to receive union
information in the workplace on non-work time and in
Labor Board should more often seek bargaining orders where
fair elections are made impossible because of employer threats.
• The NLRB
should conduct elections as quickly as possible after
petitions are filed.
Labor Board needs to have "the staff and resources to carry
out its mandate effectively."
"Stronger NLRB-ordered and court-ordered remedies,
including punitive damages, should be fashioned for willful
refusal to bargain in good faith." First-contract
arbitration should be used as a remedy where workers are
deprived of right to bargain freely.
workers who want to organize should have the right to do so
— Congress should end the exclusion of public sector,
so-called independent contractors, agricultural and domestic
workers and welfare-to-work recipients classified as
"trainees." The U.S. should protect the rights of
subcontracted and "leased" workers.
These recommendations alone are a reminder of
the severity of the U.S. labor rights/human rights crisis.
Protections that ought to be in U.S. law, aren’t; protections
that are, often don’t get enforced. As a leader of the
organizing drive at Avondale told Human Rights Watch: "The
For more information, visit the Human Rights
Watch web site at http://www.hrw.org.
The report, "Unfair Advantage" can be found at http://www.hrw.org/reports/2000/uslabor/.