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ICFTU on U.S. trade union rights
Source Sid Shniad
Date 99/12/09/23:26

International Confederation of Trade Unions (ICFTU)

Annual survey of violations of trade union rights, 1999

UNITED STATES OF AMERICA

POPULATION : 269 400 000 / CAPITAL : WASHINGTON / ILO CORE
CONVENTIONS RATIFIED : 105

Sacking of union supporters commonplace

The right to organise and right to strike are not adequately protected in
United States labour legislation. The law is unable to protect workers
when the employer is deter-mined to destroy or prevent union
representation.

At least one in 10 union supporters campaigning to form a union is
illegally fired. For every 30 people who vote for a union in elections in
any one year, one will be illegally fired. At least one worker will be
illegally fired in 25 per cent of all union-organising campaigns. A poll
conducted in 1994 found that 79 per cent of Americans believe workers
are likely to get fired if they try to organise a union at their workplace.
The NLRB is estimated to have a backlog of almost 25,000 cases
involving unfair labour practices committed by employers opposing trade
union activity.

Double standards in law

US labour legislation allows for double standards with respect to the
rights of employers and of workers. In nine out of 10 union
representation elections employers use mandatory closed-door meetings
conducted on their own property during work to campaign aggressively
against collective bargaining and trade unions. Supervisors not eligible
to be represented by the trade union may have to participate in a vicious
and intimidating campaign against the union. Employees who support
trade unions are identified and often isolated from other workers. Some
employers engage consultants, detectives and security firms to assist in
anti-union campaigns.

Often their activities include surveillance of union activists in order to
discredit them. In some cases court, medical and credit records of union
activists are obtained and the family lives of activists are studied for
possible weaknesses.

Except in rare circumstances, trade union representatives are denied
access to the employer's property to meet employees during non-
working time. During organising campaigns, threats of arrest against
union representatives and their expulsion from the employer's property
deny workers any reasonable opportunity to consider freely the
advantages of union membership. The government-conducted election
used to determine if workers want union representation is usually held on
the employer's premises ≠ the place where most anti-union intimidation
has occurred.

Lack of effective redress for workers

The procedures of the National Labor Relations Board (NLRB), the body
which governs indus trial relations in most of the private sector, do not
provide workers with effective redress in the face of abuses by
employers. Many workers, including those fired illegally, do not use
available legal procedures because they take too long and fail to provide
adequate compensation or redress the wrong done to them. It takes an
average of 557 days for the NLRB to resolve a case. In 1998, 62
workers illegally fired during a union organising campaign that took
place 19 years earlier finally received a financial settlement arising from
the illegal activity of their former employer. One study found that, where
employees are ordered reinstated, only 40 per cent actually return to
work and only 20 per cent remain employed for more than two years.

The workers that do quit give unfair treatment as their main reason for
leaving. Should the NLRB determine that an employer has committed
sufficient unfair labour practices so that a fair election to decide union
representation was impossible, it may order a new election. The
prospect of a new election rarely deters an employer from committing
the same, or worse, illegal tactics.

Employees at the Four Points Hotel in Waterbury, Connecticut, were
permitted a second representation election in 1995 based on the
companyís unfair labour practices including dismissing employees for
union activity. Although the workers voted for union representation the
company continues to prevent its employees from exercising their rights.

Closures in response to organising

Although it is illegal for employers to threaten to close or move their
operations in response to union organising activity, a study released in
1996 found that employers threaten to close their plants in over half of
all organising campaigns, and in industries such as manufacturing where
this threat is most credible this violation occurs in over 60 per cent of all
campaigns. Where 0 collective agreements are negotiated for the first
time 18 per cent employers threaten to close their facilities and 12 per
cent of the employers actually follow through with their threats. The
National Labor Relations Act requires the NLRB to seek injunctions in a
federal court against trade unions committing certain kinds of unfair
labour practices. There is no corresponding obligation when the unfair
labour practices are committed by employers. Unlawful acts by
employers who deny trade union rights to their employees often
accomplish their intended goal before any proceedings are concluded.

Basic union rights denied to many

Because trade union organising in the United States often involves
excessive and costly litigation, the right to join trade unions and
participate in collective bargaining is in practice denied to large
segments of the American workforce. Throughout the period under
review, the management of the New Otani Hotel and Garden in Los
Angeles continued its anti-union campaign in an effort to halt a seven-
year union organising drive.

Employers regularly challenge the results when the union wins a
representation vote, regard-less of the margin of victory. The
government will spend months, and sometimes years, exam-ining what
are often minor or frivolous charges before ordering a company to
bargain with the union. In the meantime, union supporters quit or are
fired, and new workers are hired, often after the employer has screened
out what it deems to be potential union supporters, sometimes by using
psychological and other tests.

Throughout 1998, 5,000 workers at the Avondale Shipyard in New
Orleans were denied their right to collective bargaining as their employer
continued to use the court system to avoid complying with an NLRB
ruling that it must bargain with its employees who voted for union
representation in 1993. The employer had succeeded in delaying the
vote count in this election for 44 months until February 1997. Since the
election, the NLRB has issued approximately 400 complaints against the
company including discriminatory dismissals, demotions, transfers and
redundancies as well as unlawful surveillance and intimidation of union
supporters and has ordered the company to reinstate 28 illegally
terminated employees. Thus far, these remedies have been insufficient
to get the company to respect the rights of its employees.

Obstacles to bargaining

The options available to employers to discourage workers from
exercising their trade union rights do not end if a union is certified. It is
estimated that approximately one third of employers engaged in bad
faith or "surface" bargaining with newly-certified unions. Forty per cent of
negotiations for a first collective agreement fail. One study showed that
in a quarter of the remaining cases where a first collective agreement
was achieved, the union was unable to negotiate a subsequent
agreement.

Throughout 1998 drivers and loading dock workers employed by the
Overnite Transportation Co. have had to contend with blatant surface
bargaining by their employer. Since organising activity began at the
national trucking company, workers employed at 38 out of 165 terminals
have voted for union representation in separate elections. Because
these elections include most of the largest terminals, the union now
represents approximately 45 per cent of the companyís workforce
eligible for union representation. Despite scores of collective bargaining
sessions and the issuing of numerous complaints by the NLRB against
the company for its refusal to bargain, no collective agreement has been
reached at any union represented terminal. Refusing to enter into
serious negotiations is part of a larger company response to union
activity which has also included illegal discharges and the illegal closing
of several union-represented terminals. The NLRB has issued
complaints alleging approximately 1000 separate and serious unfair
labour practices committed by the company. 6

Restrictions on workersí activity - freedom for employers

The law, and various administrative and judicial decisions, place a
variety of restrictions on the ability of workers to engage in "concerted
activity" including restrictions on intermittent strikes, secondary boycotts
and other forms of mutual aid as well as on various kinds of "on-the- job"
activity.

However, the law gives employers the "free play of economic forces". If
employers cannot get what they want through collective bargaining, they
can unilaterally impose their terms, lock out their employees, and
transfer work to another location, or even to another legal entity.
Throughout 1998, 250 workers employed at Crown Central Petroleumís
refinery in Pasadena Texas remained locked out of work. In October
1996 company supervisors escorted the union members from the facility
during contract negotiations and began to run the plant using sala-ried
personnel and personnel supplied by outside contractors. Broadcast
technicians at ABC, a company owned by the Disney Corporation, found
themselves locked out by the company when they returned to work
following a one-day strike. The company attempted to shift production of
some of its television news programmes to the United Kingdom.

Throughout 1998 employees at the Hi-Tech Cable plant in Starkville,
Mississippi continued to work without a collective agreement. Their
company had been purchased by another firm, Southwire Co., in 1992.
Following the expiration of the existing collective agreement the new
owners declared an impasse in negotiations and unilaterally
implemented changes in terms of employment - including 12-hour days
without overtime, the elimination of mandatory arbitra-tion and the
elimination of grievance procedures during working hours - in a
deliberate attempt to destroy the union.

In the construction industry, it is a common and legal practice for
employers to create separ-ate non-union companies and thereby avoid
negotiated commitments.

Replacing strikers - permanently

Recent surveys of employers with impending negotiations have found
that upwards of 80 per cent are committed to, or contemplating,
replacing workers if they canít get a deal they like. Under the law,
employers can hire replacement workers during an economic strike.
Although the dismissal of strikers is banned, the use of permanent
replacements is, in practice, virtually indistinguishable from dismissal.

Employer-provoked strikes

More and more employers have deliberately provoked strikes to get rid
of trade unions. Unacceptable demands are made of workers and are
often accompanied by arrangements for the recruiting and training of
strike-breakers. Permanent replacement workers can vote in a
decertification election to eliminate union recognition. Should the
company and the union reach an agreement during a strike, striking
workers do not automatically return to work. The law only gives strikers
the right to return to work as jobs become available.

Throughout 1998, employees of the walnut producer co-operative
Diamond Walnut, in Stockton, California, continued a strike that began
in 1991. Also throughout the year employees of the Best Western
Grosvenor Resort in Lake Buena Vista, Florida, continued a strike begun
in September 1996.

In June 1997 an Administrative Law Judge found that Detroit News and
Knight-Ridder had unlawfully provoked a strike which began on 13 July
1995, involving 2,600 employees of the Detroit News, owned by media
conglomerate Knight-Ridder, and the Detroit Free Press, owned by
media conglomerate Gannett. The newspapers were ordered to reinstate
the striking wor-kers but appealed to the NLRB. In September 1998 the
NLRB ordered the companies to re-hire the strikers. The newspapers are
appealing this decision and continue to refuse to rehire most of the
striking workers. 0

The employees of CF&I Steel in Boulder Colorado (now known as Rocky
Mountain Steel), a subsidiary of Oregon Steel Mills, Inc., were
permanently replaced following a strike that began in October 1997. The
company refused the unionís unconditional offer to return to work in
December 1997 and continued to operate with permanent replacements
throughout 1998. Following a strike that began in September 1998,
1,500 workers employed at Continental General Tire, Inc. in Charlotte,
North Carolina were replaced. The company, owned by German tyre
maker Continental AG, began preparations for contract negotiations by
fortifying the plant, hiring armed guards and by recruiting stikebreakers.

These strikes were provoked by employers ≠ whose enterprises were
successful ≠ demanding big cuts in existing wages, working conditions
and benefits in contracts established through collective bargaining. The
duration of these strikes, and the corresponding hardship for the striking
workers, was caused by the legal use of strike-breakers by the
employers. In the case of the Diamond Walnut dispute, the employer
even required workers to train their replace-ments. These strikes,
although among the longest, were only a few of the cases in which
employers used replacement workers in violation of the right to strike.

Employers obstruct collective agreements

Strike-breakers are not only used to destroy established collective
bargaining relationships but also to prevent trade unions from achieving
a first agreement. In March 1997 employees at Magnetic Speciality Inc.
in Marietta, Ohio, went on strike for the purpose of obtaining trade union
recognition and were promptly replaced. The workers at this facility had
voted for union representation in an NLRB supervised election in August
1995. The company had ignored three NLRB orders to recognise the
union and illegally dismissed some union supporters. During the strike
the company used private security guards to intimidate the strikers,
threatened to dismiss strikers and unilaterally altered work rules, job
classifications and other terms of employment without fulfilling its
obligation to consult the union. In October 1997 a federal court ordered
the company to recognise the union. Although a collective agreement
was reached in January 1999, it took four years including a 22 month
strike for the workers to obtain union recognition.

In January 1998 following months of negotiations for a first contract,
employees of Jet Equipment Inc., a distributor located in Auburn
Washington and owned by Swiss based Walter Meier Holding Company,
organised a strike and were replaced.

Extreme exploitation

An under-funded labour inspectorate and inadequate penalties for
employers who violate the law mean that legally established labour
standards covering wages and hours, child labour and workplace safety
are inadequately enforced. This, together with the failure of US law to
pro-tect trade union rights, has led to an increasing number of instances
of extreme exploitation. Some of the most extreme exploitation takes
place in territories under the control of the U.S. government. Since the
1980ís the U.S. Commonwealth of the Northern Mariana Islands has
developed a garment industry based on the ability of these islands to
ship products duty free and without quotas to the US. This status,
together with local control of wage and immigra-tion laws, has had the
practical effect of introducing a system of indentured servitude into the
territory. Local authorities permit foreign-owned companies to recruit
thousands of foreign workers, mainly young women from Thailand,
China, the Philippines and Bangladesh. The workers are recruited by
private agencies who demand exorbitant fees from these workers. Fees
are either paid in advance or are deducted from pay in an arrangement
that requires the workers to remain in the employ of the same
manufacturer who in turn has a relationship with the recruiting agency. 8

In addition to the abuse of fee-charging, these foreign workers are
routinely required to sign employment contracts where they agree to
refrain from asking for wage increases, seeking other work and from
joining a union. The workers are informed that contract violations will
result in dismissal as well as deportation and that the workers concerned
must pay the travel expenses to return to their home country.

Groups excluded from national labour legislation

National labour legislation does not cover agricultural, domestic workers
and certain kinds of supervisory workers. Moreover, the concept of
"employee" as used in the law does not accord protection to
"independent contractors" even where they have no separate economic
identity independent of a particular employer.

Throughout 1998 over 2000 migrant and seasonal farmworkers
employed on farms that supply the Mount Olive Pickle Company have
sought to obtain recognition for their trade union from this company
which, in the absence of any legal framework to protect their rights, is
the only organisation capable of engaging in meaningful collective
bargaining or in according effective trade union recognition.

Public sector - also facing a lack of protection

The inadequacy of laws is not limited to the private sector.
Approximately 40 per cent of all public sector workers, nearly seven
million people, are still denied basic collective bargaining rights. At the
national level, only postal workers enjoy such rights and 94 per cent of
the pos-tal workers are represented by trade unions. Over two million
employees of the federal govern-ment are governed by the 1978
Federal Labor Relations Act which outlaws strikes, proscribes collective
bargaining over hours, wages and economic benefits, and imposes an
excessive definition of management rights which further limits the scope
of collective bargaining rights. While the situation varies from state to
state, the absence of proper legal protection of trade union rights in the
public sector is reflected in bans on strikes, bans on collective
agreements, provisions for their invalidation, limitations on the scope of
collective bargaining and discrimination against national trade union
organisations. Thirteen states only allow collective bargaining for certain
public employees and 14 states do not allow it at all. Nearly seven
million of the total of 14.9 million state and local government employees
in the United States are denied the right to bargain collectively.

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