Bosses Are Charged with Breaking the Law in Over 40% of Union Campaigns

Michelle Chen December 12, 2019

There is a shocking level of illegal interference in U.S. union drives. (Photo by Erik McGregor/Pacific Press/LightRocket via Getty Images)

Labor unions are more pop­u­lar than they’ve been in over 15 years. Yet a record-low num­ber of work­ers belong to them. The gap between the pub­lic per­cep­tion of unions and their actu­al mem­ber­ship illus­trates just how dif­fi­cult it’s become for work­ers to organize.

In a new report, the pro­gres­sive think tank Eco­nom­ic Pol­i­cy Insti­tute (EPI) found evi­dence that employ­ers are increas­ing­ly brazen in seek­ing to obstruct work­ers’ attempts to union­ize. Records of the Nation­al Labor Rela­tions Board (NLRB), which over­sees pri­vate-sec­tor labor rights and union elec­tions, reveal that in more than 40% of the 3,260 union elec­tions dur­ing 2016 and 2017, employ­ers have been charged with unfair labor prac­tices aimed at under­min­ing elec­toral pro­ce­dures and retal­i­at­ing against pro-union workers.

About 30% of unfair labor prac­tice (ULP) charges ana­lyzed by EPI involved alle­ga­tions of threats, sur­veil­lance or harass­ment of work­ers. Anoth­er 30% involved alle­ga­tions of ille­gal dis­ci­pline, with one in five elec­tions marred by the charges of ille­gal­ly fir­ing work­ers for sup­port­ing the union. Work­force size is a fac­tor: the high­est rate of ULP claims — more than 50% — was seen among firms with poten­tial bar­gain­ing units of 61 work­ers or more. The anti-union actions occurred at a high­er rate dur­ing the two-year peri­od than dur­ing the ear­ly 2000s.

This pat­tern of union bust­ing could help explain why pri­vate-sec­tor union­iza­tion has dwin­dled to just 6.4% in 2018. Ben Zip­per­er, co-author of the report, told In These Times that the study sug­gests the hos­tile atmos­phere towards labor, or basi­cal­ly the employ­er aggres­sion against work­ers try­ing to form unions, is the main obstacle.”

In one case of elec­tion-relat­ed ULP claims, work­ers at Trump Inter­na­tion­al Hotel Las Vegas, who sought to union­ize with UNITE HERE in 2016, just ahead of Trump’s elec­tion, charged their employ­er with a num­ber of retal­ia­to­ry actions, includ­ing tight­en­ing super­vi­sion or increas­ing the work­load of some employ­ees, and dis­parate­ly enforc[ing] its new Groom­ing Pol­i­cy” to coerce tar­get­ed work­ers into chang­ing their hair color.

Although EPI does not cov­er the out­come of the cas­es (charges are often dropped and lit­i­ga­tion might drag on for years), the preva­lence of ULP charges is telling. It’s like­ly that the employ­ees who file a for­mal legal charge rep­re­sent only the frac­tion of work­ers who have the resources and where­with­al to wage a legal bat­tle with their employ­er. After all, the most suc­cess­ful union-bust­ing cam­paigns may be the ones that nev­er come to light because the work­ers have been thor­ough­ly sup­pressed — or ousted.

Employ­ers pur­sue a vari­ety of tac­tics that would oth­er­wise be ille­gal or unfair, that nev­er make it to the charg­ing stage,” says Zip­per­er, because it’s a very dif­fi­cult and lengthy process with lit­tle reward for the work­er at the end.”\

Fil­ing an unfair labor prac­tice charge is the basic tool that work­ers have to hold employ­ers to account under the Nation­al Labor Rela­tions Act (NLRA). To pro­tect work­ers’ right to orga­nize and main­tain the integri­ty of union elec­tions, under the law, employ­ers can­not threat­en to shut down a plant, or fire work­ers or take away their ben­e­fits if they seek to union­ize. Boss­es are barred from coer­cive­ly inter­ro­gat­ing work­ers about their union activ­i­ties, or attempt­ing to spy on them. The NLRA also broad­ly pro­hibits employ­ers from dis­crim­i­nat­ing against work­ers who sup­port union­iza­tion — for exam­ple, by demot­ing or lay­ing off work­ers who pro­mote union­iza­tion to their coworkers.

While the NLRB should act as the cen­tral arbiter of labor rela­tion, the agency has lit­tle lever­age over employ­ers that engage in union-bust­ing. Typ­i­cal­ly, even if a com­pa­ny is proven to have act­ed ille­gal­ly, the NLRB can­not force it to pay dam­ages, beyond back wages and rein­state­ment. On top of those struc­tur­al bar­ri­ers, the cur­rent Repub­li­can major­i­ty on the NLRB ensures that what­ev­er cas­es do go before the Board, there is a good chance they will result in an anti-work­er ruling.

The over­ar­ch­ing weak­ness of the NLRA is what it does not cov­er. Employ­ers are free to deploy var­i­ous anti-union tac­tics on their work­sites, includ­ing broad­cast­ing argu­ments against union­iza­tion and launch­ing smear cam­paigns against the third par­ty” union orga­niz­ers who threat­en to under­mine the work­ers’ rela­tion­ship with their boss.

The mar­ket for anti-union tac­tics has giv­en rise to a cot­tage indus­try of union-bust­ing firms. Over­all, EPI esti­mates that com­pa­nies pour an esti­mat­ed $340 mil­lion every year into union-avoid­ance” con­sul­tants. Among the top spenders are Nes­tle, Fedex, Mis­sion Foods and Trump Inter­na­tion­al Hotel Las Vegas. The anti-union con­sul­tan­cies spe­cial­ize in flood­ing work­places with pro­pa­gan­da as well as orches­trat­ing so-called cap­tive-audi­ence” meet­ings, in which com­pa­nies pres­sure work­ers to attend anti-union lectures.

Alle­ga­tions of intim­i­da­tion, retal­i­a­tion and dis­in­for­ma­tion are at the cen­ter of recent clash­es at Google, Hous­ing Works and Johns Hop­kins Uni­ver­si­ty Hos­pi­tal—a pur­port­ed­ly pro­gres­sive tech giant and two non­prof­its — where work­ers have accused their employ­ers of using dirty cam­paign tac­tics to crush union drives.

The cur­rent union­iza­tion dri­ve by Hearst employ­ees has prompt­ed the company’s exec­u­tives to set up a microsite fea­tur­ing point­ed­ly biased expla­na­tions of the con­se­quences of union­iz­ing, accord­ing to Vice. Work­ers were warned, All terms of pay, ben­e­fits, and work­ing con­di­tions would be up for dis­cus­sion. No one can guar­an­tee in advance what that con­tract would include.”

Last April, Labor Notes report­ed that at a cap­tive-audi­ence meet­ing at a Volk­swa­gen plant in Chat­tanooga, Ten­nessee, work­ers were bom­bard­ed with pro-busi­ness mes­sag­ing from Gov. Bill Lee, who sang the prais­es of Volk­swa­gen for bring­ing jobs to the state and telling work­ers it was best to have a direct rela­tion­ship” with the automak­er, free of union interference.

While some aggres­sive anti-union prac­tices are per­fect­ly legal, EPI notes that the NLRA’s pro­tec­tions for work­ers’ orga­niz­ing rights can be strength­ened sim­ply by giv­ing the law real teeth. The recent­ly intro­duced Pro­tect­ing the Right to Orga­nize (PRO) Act would cre­ate civ­il penal­ties for abu­sive employ­ers, ban cap­tive-audi­ence meet­ings and allow work­ers to press unfair labor prac­tice claims in civ­il courts, rather than just the NLRB.

One of the sim­plest things that we can do,” Zip­per­er said, is we can actu­al­ly make labor law mat­ter by attach­ing mean­ing­ful and sig­nif­i­cant penal­ties to employ­ers when they vio­late that law.”

Under the cur­rent legal frame­work gov­ern­ing union elec­tions, the fact that unions remain so pop­u­lar in pub­lic opin­ion sur­veys shows that despite the hos­tile polit­i­cal cli­mate, work­ers still believe in the pow­er of col­lec­tive action. Imag­ine what might be achieved if labor law stopped get­ting in the way.

Michelle Chen is a con­tribut­ing writer at In These Times and The Nation, a con­tribut­ing edi­tor at Dis­sent and a co-pro­duc­er of the Bela­bored” pod­cast. She stud­ies his­to­ry at the CUNY Grad­u­ate Cen­ter. She tweets at @meeshellchen.
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