RIGHT TO ORGANIZE
BACKGROUND MATERIAL

AFL-CIO TOOLKIT
The AFL-CIO has a 46-page Toolkit in support of the “Employee Free Choice Act” and the right to organize including sample publications, letters to the editor, fact sheets, lobbying techniques, letters to legislators, op-ed articles, online resources, historical background and much more available to print out in PDF file at
 

http://www.bctgm.org/pdf%20files/EFCA%20toolkit.pdf

 

RESEARCH ON THE RIGHT TO ORGANIZE
Much of the most important research on the right to organize in the United States has been done by Prof. Kate Bronfenbrenner director of labor education research at the New York State School of Industrial and Labor Relations at Cornell University.

The following are a few quotes from a December 2000 article “Raw Power” based on her report to the U.S. Trade Deficit Review Commission. The complete article is available at:

http://multinationalmonitor.org/mm2000/00december/power.html

Not only are individual workers afraid to ask for significant wage increases, the specter of capital mobility haunts the union organizing process for unorganized workers and collective bargaining over wages and benefits for workers already in unions.

The Threat to Close
In a 1996 study commissioned by the Labor Secretariat of the Commission for Labor Cooperation (NAALC), I found that under the cover of trade agreements and the need to stay competitive in the global economy, a majority of employers use the threat of plant closure and capital flight in organizing drives and at the bargaining table [see "We'll Close!," Multinational Monitor, March 1997].

Consistent with the 1993-1995 period, 51 percent of all employers in 1998-1999 made threats to close all or part of the facility if the union was to win the certification election campaigns.

Employers deliver threats to close plants in a variety of guises and through varied channels. Forty percent of employers facing union certification elections in 1998-1999 made veiled verbal threats, while 26 percent made specific unambiguous verbal threats. Thirteen percent of the employers made veiled written threats and 5 percent of the employers made specific unambiguous written threats.

Closing Threats Increase
Companies also made direct threats to transfer work to unorganized plants of the same company, both in the U.S. and abroad, if the union was successful.

In industries such as manufacturing, communications and wholesale distribution, where the rate of capital mobility in and out of the country skyrocketed in the second half of the 1990s, the proportion of employers making plant-closing threats during organizing campaigns has risen to more than 70 percent. When combined with other anti-union tactics of employers, as they are in the overwhelming majority of employer campaigns, plant-closing threats are extremely effective in undermining union organizing efforts, even in a context where the majority of workers in the unit seem predisposed to support the union at the onset of the organizing campaign.
 
Thirty years ago, industrial jobs benefited most from tight labor markets and helped drive the economic expansion. But today workers in these industries operate in the shadow of the economic boom, sharing in little, if any, of its fruits. They work ever longer hours in workplaces beset by serious job injury and health problems, with declining pay, few benefits and little security.

THE WIDE WORLD OF ANTI-UNION TACTICS

The overwhelming majority of the employers in the 1998-1999 survey sample aggressively opposed the union’s organizing efforts through a combination of threats, discharges, promises of improvements, unscheduled unilateral changes in wages and benefits, bribes, and surveillance.

Individually and in combination, these tactics were extremely effective in reducing union election win rates.

Discharged for Union Activity

In addition to plant-closing threats, one in every four employers discharged workers for union activity, while 48 percent made promises of improvement, 20 percent gave unscheduled wage increases, and 17 percent made unilateral changes in benefits and working conditions. Sixty-seven percent of the employers held supervisor one-on-ones with employees at least weekly, 11 percent promoted union activists out of the unit, 34 percent gave bribes or special favors to those who opposed the union, 31 percent assisted an anti-union committee and 10 percent used electronic surveillance of union activists during the organizing campaign.

Sixty-two percent of the employers in election campaigns ran anti-union campaigns using more than five of the tactics listed, and 20 percent of the employers ran extremely aggressive campaigns using more than 10 tactics. Employers ran no campaign whatsoever against the union in only 3 percent of the campaigns, all of which were won by the union.

HUMAN RIGHTS WATCH REPORT

“UNFAIR ADVANTAGE"

    A book-length report on U.S. labor practices released by Human Rights Watch in 2000 found that "workers' freedom of association is under sustained attack in the United States, and the government is often failing its responsibility under international human rights standards to deter such attacks and protect workers' rights."

The following are some quotes from this report – the full text is available at:

http://www.hrw.org/reports/2000/uslabor/

Many Americans think of workers' organizing, collective bargaining, and strikes solely as union-versus-management disputes that do not raise human rights concerns. This report approaches workers' use of these tools as an exercise of basic rights where workers are autonomous actors, not objects of unions' or employers' institutional interests. Both historical experience and a review of current conditions around the world indicate that strong, independent, democratic trade unions are vital for societies where human rights are respected. Human rights cannot flourish where workers' rights are not enforced. Researching workers' exercise of these rights in different industries, occupations, and regions of the United States to prepare this report, Human Rights Watch found that freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it.

Most of Human Rights Watch's investigation, however, deals with workers' attempts to form unions and bargain with their employers. Forming and joining a union is a natural response of workers seeking to improve their working conditions. It is also a natural expression of the human right, indeed the human need, of association in a common purpose where the only alternative offered by an impersonal market is quitting a job

Under “Sustained Attack”
The absence of systematic government repression does not mean that workers in the United States have effective exercise of the right to freedom of association. On the contrary, workers' freedom of association is under sustained attack in the United States, and the government is often failing its responsibility under international human rights standards to deter such attacks and protect workers' rights.

The cases studied in this report are not isolated exceptions in an otherwise benign environment for workers' freedom of association. They reflect a broader pattern confirmed by other researchers and borne out in nationwide information and statistics.

In the 1950s, for example, 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 leading to a back-pay order by the NLRB-23,580 in 1998.14 The frequency and growing incidence of workers' rights violations should cause grave concern among Americans who care about human rights and social justice.

Enforcement Falls Short
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.

Any employer intent on resisting workers' self-organization can drag out legal proceedings for years, fearing little more than an order to post a written notice in the workplace promising not to repeat unlawful conduct and grant back pay to a worker fired for organizing

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. As a result, a culture of near-impunity has taken shape in much of U.S. labor law and practice.

”Permanent Replacement” Nullifies Rights
U.S. legal doctrine allowing employers to permanently replace workers who exercise the right to strike effectively nullifies the right. Mutual support among workers and unions recognized in most of the world as legitimate expressions of solidarity is harshly proscribed under U.S. law as illegal secondary boycotts. Labor laws have failed to keep pace with changes in the economy and new forms of employment relationships creating millions of part-time, temporary, subcontracted, and otherwise "atypical" or "contingent" workers whose exercise of the right to freedom of association is frustrated by the law's inadequacy.

Freedom of association is the bedrock workers' right under international law on which all other labor rights rest. In the workplace, freedom of association takes shape in the right of workers to organize to defend their interests in employment. Most often, workers organize by forming and joining trade unions. Protection of their right to organize is an affirmative responsibility of governments to ensure workers' freedom of association.

Right to Bargain Collectively
The right to bargain collectively stems unbroken from the principle of freedom of association and the right to organize. Protecting the right to bargain collectively guarantees that workers can engage their employer in exchange of information, proposals and dialogue to establish terms and conditions of employment. It is the means by which fundamental rights of association move into the real and enduring life of workers and employers.

In the United States, millions of workers are excluded from coverage by laws to protect rights of organizing, bargaining, and striking. For workers who are covered by such laws, recourse for labor rights violations is often delayed to a point where it ceases to provide redress. When they are applied, remedies are weak and often ineffective. In a system replete with all the appearance of legality and due process, workers' exercise of rights to organize, to bargain, and to strike in the United States has been frustrated by many employers who realize they have little to fear from labor law enforcement through a ponderous, delay-ridden legal system with meager remedial powers.

New Commitment Needed
What is most needed is a new spirit of commitment by the labor law community and the government to give effect to both international human rights norms and the still-vital affirmation in the United States' own basic labor law for full freedom of association for workers. The specific findings and recommendations that follow should be seen in this broader context.

"FREE AND FAIR "
LABOR LAW FAILS

Free and Fair? How Labor Law Fails U.S. Democratic Election Standards
The report investigates how current union election procedures measure up to U.S. democratic standards.  In spite of the presence of secret ballots, it concludes that union representation elections fall alarmingly short of living up to the most fundamental tenets of democracy

The full report is available at:

http://www.americanrightsatwork.org/resources/facts/freeandfair.cfm

American Rights at Work commissioned University of Oregon political scientist Gordon Lafer to investigate how current union election procedures measure up to U.S. democratic standards.  Lafer engaged in a thorough examination of the political philosophy and published works of the founders, the historical development of electoral law and jurisprudence, and current statutes and regulations that define "free and fair” elections.

Lafer concludes that union representation elections fall alarmingly short of living up to the most fundamental tenets of democracy.  The inclusion of a secret ballot does not change the fact that the process as a whole is fundamentally broken and unfair.

PROBLEMS OF ORGANIZING WAL-MART
 

Trying to Organize Wal-Mart
    Since 1999 the United Food and Commercial Workers and other unions have filed more than 300 charges against Wal-Mart with the NLRB, accusing the company of, among other transgressions, firing employees for suspected union activity in violation of the Wagner Act.
     In April, the UFCW threw in the towel and decided to start from scratch. Instead of seeking to organize workers store by store, it launched WakeUpWalMart.com, a public awareness campaign designed to educate the public about Wal-Mart's business impact and negative community effects. A coalition led by SEIU, Democracy for America and the Sierra Club has launched a similar project called WalMartWatch.com.

Now No Right to Organize
    Because there's been so much focus on Wal-Mart's misdeeds, it's easy to surmise that the company is a kind of outlier, and that the rest of corporate America would never stoop to such techniques. This is simply not the case. "The right to organize in the United States is on the verge of extinction," says Andy Levin, director of the AFL-CIO's Voices@Work campaign. "Wal-Mart's not a bad apple--it's the very symbol of a rotten system."
    A book-length report on U.S. labor practices released by Human Rights Watch in 2000 (see quotes and source web link above) found that "workers' freedom of association is under sustained attack in the United States, and the government is often failing its responsibility under international human rights standards to deter such attacks and protect workers' rights."
    Employers don't have to break the law to be effective. They can legally require supervisors to actively campaign against the union upon pain of termination and they can require employees to attend one-on-one pressure sessions with their bosses. "No other industrialized democracy allows this," says Levin.

No Punitive Damages
    But even if they do break the law there are no punitive damages or large fines. In fact, employers simply have to give back pay minus what the fired employee was making at his or her subsequent job.
    "Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business," says the Human Rights Watch report. "As a result, a culture of near-impunity has taken shape in much of U.S. labor law and practice."
    For several years, Levin and others at the AFL-CIO have been attempting to build support for legislation that would chip away at this "culture of near-impunity." The Employee Free Choice Act, which currently has more than 204 sponsors in the House and 40 in the Senate, would legally recognize a bargaining unit if a simple majority of workers signed a card endorsing unionization.

Binding Arbitration
    It would also create binding arbitration for the first contract a newly certified union negotiates, and increase penalties for employer violations. Similar legislation has come close to passing in the past, but has often fallen victim to filibusters from corporate friendly senators.
    Such legislation isn't necessary in countries where workers' rights are already protected. In Germany, Wal-Mart has bought out several stores that were already unionized, and they have stayed unionized. Since Wal-Mart isn't in the charity business, it's safe to assume those stores are quite profitable. In the film, Greenwald interviews workers there who proudly speak of health benefits and six weeks of paid vacation. One woman says she doesn't understand--why can't her American colleagues form a union?

RIGHT TO ORGANIZE
CONGRESSIONAL AND STATE ACTION
 

The “Employee Free Choice Act” has been filed and has many co-sponsors in Congress. To find out more use the links below or see www.americanrightsatwork.org
 

N.J. Governor Signs Majority Sign-Up Bill

    On July 19, acting New Jersey Governor Richard Codey (D) signed into law a bill that grants workers who are not covered by the National Labor Relations Act the right to form unions through a majority sign-up, or card-check, procedure.

    Like the majority sigh-up provision in the Employee Free Choice Act, the New Jersey legislation allows workers to exercise their right to form a union without the lengthy campaigns of fear and intimidation that regularly occur during NLRB elections.  Under majority sign-up, workers win union representation once a majority signs authorization cards stating their support for the union.

    Despite opposition from business groups, the legislation passed both the state Assembly and the state Senate with bipartisan support.

Iowa Home Care Workers Win Voice

    Just 11 days after Iowa Gov. Tom Vilsack granted collective bargaining rights to home care workers, 2,500 home care workers in the state won union representation with AFSCME through a majority sign-up procedure on July 15.  A majority of the workers—who previously were considered independent contractors—signed authorization cards stating their desire for union representation.  A neutral third party verified the workers’ choice.

    The home care workers do the same work as workers in state-run facilities—caring for the elderly and people with disabilities—and are paid with public funds.  But unlike the state workers, the home care workers provide care in their clients’ homes.  The home care workers currently do not receive health care, holiday pay, sick leave or other benefits. 

    With their new union, Iowa home care workers are looking forward to winning some of these benefits, as well as the respect for which they have been fighting.

WASHINGTON POST – (Editorial) excerpt July 31, 2005
    It's essential, in a free society, that unions should get a chance to make their case, and the decision on whether to join must belong with the workers.

    This is where there is a legitimate concern for policymakers. Employers can block union attempts to organize by using tactics that are illegal or at least undesirable. They can fire workers who favor a union; this is against the law, but the penalties are tiny. They can intimidate workers while staying within the law; a supervisor can summon a worker to a one-on-one meeting to discuss the dangers of unions, and then do so again the next day and the next day. Meanwhile employees can be legally banned from mentioning the possibility of a union during work hours.

    Congress needs to revisit the law to make it tougher on employers. At present, the National Labor Relations Board, which is charged with hearing allegations of unfair labor practices, can take years to adjudicate cases of unfair dismissal, and all a worker can hope to receive is part of his back pay plus an unappetizing chance to return to the employer that fired him. The labor board has some latitude to increase compensation, which it should use. But to deter strong-arm employer tactics, punitive awards are required, and this means new legislation. Equally, workplace votes on establishing a union ought to be fairer. If managers call a meeting to explain the downside of unions, a labor representative must get a chance to make the contrary argument; workers should be allowed to discuss the choice among themselves without fear of dismissal.

    In a modern economy, unions may be destined to dwindle. But the dwindling should reflect free choices of workers, not intimidation.