Worker and community groups held rallies around the country demanding passage of the Employee Free Choice Act. One company targeted was Rite Aid, where employees say management has blocked them from forming a union, even after a NLRB vote. (Photo: Slobodan Dimitrov / Labor Notes)
Opinion polls say that the majority of US workers want to be in a labor union, according to Kate Bronfenbrenner, a professor and director of Labor Education Research, New York State School of Industrial and Labor Relations at Cornell University. So why are just 12.4 percent of American workers union members? In brief, they fear what their bosses will do to them. Such fear is real. Employers more than doubled their use of anti-union tactics against employees attempting to form unions between 1999 and 2003 versus Bronfenbrenner's three earlier research periods. Meticulously, she details this rising anti-labor trend in a new study, No Holds Barred: The Intensification of Employer Opposition to Organizing, published by the Economic Policy Institute of Washington, DC, and released May 20.
The study analyzes a random sample of 1,004 National Labor Relations Board union election campaigns, and in-depth surveys with head union organizers in 562 of these campaigns. For workers, her findings are fearful. Sixty-three percent of employers use mandatory one-on-one, anti-union meetings with employees. Further, 57 percent of employers threatened to close the workplace, 47 percent of employers issued threats to slash benefits and wages, while 34 percent of employers fired workers during union organizing drives.
For workers who successfully formed a union through the NLRB election process, one year later less than half, 48 percent, gained a collective bargaining agreement. Two years later 63 percent of workers had a labor agreement in place, with the new agreement rate for them rising to 70 percent for the third year after an election. Rite Aid workers at its distribution center in Lancaster, north of Los Angeles in the Mojave Desert, know a thing or two about employer stalling after winning a NLRB-supervised election, which they did on March 21, 2008. Yet the 500 Rite Aid employees there are in their second year with no collective bargaining agreement in place.
Bronfenbrenner's study methodology combines Freedom of Information Act Request data from the NLRB for every unfair labor practice (ULP) document tied to union elections in the survey samples. She minces no words assessing how federal labor law protects American workers' legal rights to organize:
"Both the intensity and changing character of employer behavior, as well as the fundamental flaws in the NLRB process, have left us with a system where workers who want to organize cannot exercise that right without fear, threats, harassment, and/or retribution."
It is worth noting that unions that do file ULP documents face a lengthy process in fighting employers' anti-union tactics. Bronfenbrenner writes:
"Filing charges can hold up the election for many months if not a year or more. Thus, except in the case of the most egregious violations (e.g., serious harassment, threats of referral to ICE [US Immigration and Customs Enforcement], multiple discharges, or violence), unions typically wait until after the election to file charges."
Under the NLRB election process, 276,353 workers organized in 1970. By 1999, the year that Bronfenbrenner's new study begins, 106,699 workers won union representation through elections. In 2003, 71,427 workers organized. According to Bronfenbrenner's findings, the decline is due to employer behavior: threats, interrogation, promises, surveillance and retaliation for union activity.
How free is the freedom of speech for American workers? She writes:
"Under the free speech provisions of the NLRA [National Labor Relations Act of 1935], employers have control of the communication process. In today's organizing climate they take full advantage of that opportunity to communicate with their employees through a steady stream of letters, leaflets, emails, digital electronic media, individual one-on-one meetings with supervisors, and mandatory captive-audience meetings with top management during work time."
To this end, employers have developed a pre-emptive control system to neuter union campaigns. The emphasis is on "interrogation and surveillance to identify supporters." If that fails, according to Bronfenbrenner, "threats and harassment" follow "to try to dissuade workers from supporting the unions."
Labor unions attempting to organize union-free workplaces can file ULP charges against employers with the NLRB. Bronfenbrenner analyzed a total 926 ULPs in survey samples and 1,387 ULPs in NLRB elections. Her findings show consistency in reported employer behavior between the two categories. Employers' coercive statements and threats (i.e., job loss, wage and benefit cuts, sexual harassment) towards employees topped the list of ULP allegations, followed by allegations of worker firings. Bronfenbrenner's analysis of NLRB ULP documents shows that workers filed 23 percent of all ULPs before the filing of the NLRB election petition. Breaking that down by category, workers filed 29 percent of interrogation ULPs and 16 percent of surveillance ULP allegations prior to the election petition.
All is not doom and gloom for the American labor movement. An alternate model of union organizing exists in the US public sector. There, nearly 37 percent of workers are union members versus fewer than eight percent in the private sector, where most Americans labor. Why is the union election win-rate for public-sector employees (84 percent) nearly double that of their private-sector counterparts (45 percent)? Private employers, Bronfenbrenner found in her study, used nearly five times the number of anti-union tactics as public employers. According to her, "in 48 percent of the public-sector campaigns, the employer did not campaign at all - no letters, no leaflets, no meetings."
The Center for Union Facts declined a request to comment on Bronfenbrenner's study. However, on the group's web site, J. Justin Wilson posted a critique: "According to her own generous analysis of data from the National Labor Relations Board (1999 to 2003), only six percent of elections have an employee illegally fired."
The Center for Union Facts is "very consciously mixing apples and oranges," Bronfenbrenner said. "That [data of six percent] refers to the percent of elections where at least one allegation was filed and at least one allegation upheld." According to the survey responses, 34 percent of workers involved in union campaigns were fired.
"The reason they decided to distort the findings is that for years they have argued that my findings on discharges, wage cuts, etc. have no basis and are not upheld in the ULP data," she said. "Now I actually have hard ULP data to back me up and going to make them available in (Cornell's) Industrial and Labor Relations Catherwood library to anyone who wants to look at them, as soon as I get the money and staff to set up a system to protect the documents."
Bronfenbrenner's new study is not peer reviewed yet, as her past studies have been. However, she is planning to turn No Holds Barred into a journal article that will go through the peer review process. In the meantime, however, she "wanted to get the data out there."
Why? Consider the Employee Free Choice Act before Congress (H.R. 1409, S. 560) now, an amendment to the NLRA. EFCA would make it easier for employees to join unions by allowing a majority of them to check a union card or cast a secret-ballot vote. The election option would be the choice of employees, in contrast to the current NLRB practice. Further, EFCA would impose up fines of up to $20,000 per violation on employers who abuse employees' legal right to organize, and establish a 120-day, binding timeline for reaching a first-year contract.
American Rights at Work Education Fund provided financial help for Bronfenbrenner's study, along with six other foundations and 26 unions, she said. The Center for Union Facts ignored a request for its donors' names.
No Holds Barred - The Intensification of Employer Opposition to Organizing
By Kate Bronfenbrenner 05-20-09
Union Intimidation Study Undermines Itself
By J. Justin Wilson 05-20-09