Employers are increasingly preventing employees from forming unions in U.S. and nearly 20% of workers illegally fired for union activity

A Journal of People report

Employers are increasingly preventing employees from forming unions in the workplace, according to a new report – U.S. employers are charged with violating federal law in 41.5% of all union election campaigns – by Celine McNicholas, Margaret Poydock, Julia Wolfe, Ben Zipperer, Gordon Lafer, and Lola Loustaunau (December 11, 2019) from the Economic Policy Institute (EPI), a progressive think tank.

What’s more, the report finds, many of these efforts are illegal.

Employers were found with violating federal law in roughly 42% of all union election campaigns, with 20% involving a charge that a worker was “illegally fired” for union activity. But these numbers only represent elections supervised by the National Labor Relations Board (NLRB).

Christian Sweeney, deputy organizing director of the AFL-CIO, says that in reality, these numbers are likely an underrepresentation.
The AFL-CIO is the country’s largest coalition of more than 50 major unions and represents some 12.5 million American workers, from pilots to teachers.
“Even the undercount shows this is a huge problem,” Sweeney said. “The numbers are based on charges filed with the NLRB. But the NLRB doesn’t work that well.”
In addition to firing employees, in nearly a third of all elections, EPI notes, employers were charged with “illegally coercing, threatening, or retaliating against workers for supporting a union.”
Sweeney says none of these tactics are new, pointing to recent news stories about companies like Google, that have been called out for alleged union-busting.
“It’s unfortunate that when you start an organizing campaign,” Sweeney says, “that when people want to start a union that the strategies have to include that the employer will violate the law. It’s disheartening, but not altogether surprising.”

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Illegal activities aren’t the only union-busting moves employers use.

EPI estimates that each year, employers spend $340 million on consultants to create “union avoidance” strategies and tactics.

“The main goal of union avoidance consulting firms, is to prevent a union election from taking place—and if that fails, to ensure that workers vote against the union,” according to the report.

And if these violations are concerning, the report highlights that anti-union activities are on the rise. Data from the early 2000s indicates that unfair labor practices existed in 30% to 40% of union elections. By 2016-17, that rate had risen to as high as 54%. Illegal firing charges in elections rose from 17% to roughly 20% as shown in this recent study. But tellingly, when surveyed, campaigns reported a much higher rate of firings (from 34% in the early 2000s to nearly 41% in 2016-17), indicating that the problem was underreported.

Half a million people strike

Sweeney says these violations are on the rise in part due to an increase in union organizing. Though unions have faced declines throughout the years, there have been signs of an uptick. In 2018, a total of 485,000 people went on strike — the highest number since 1986.

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Since 1979, union representation of workers has dropped by more than half from 27% to under 12% in 2017. Last year, union representation was under 11%, according to the U.S. Bureau of Labor Statistics (BLS). The union declines are viewed negatively, according to a Pew Research poll. Just over half of Americans say that the decline in union representation is bad for working people.

Though these charges are on the rise, it doesn’t mean that employers are increasingly being penalized for anti-union activity.

“While the NLRA guarantees workers the right to organize and collectively bargain, it in fact fails to provide penalties sufficient to deter employer violations of these protections,” the report notes. “The Act does not include civil penalties or punitive damages.”

“The penalties are virtually nonexistent, and they can also take sometimes months, or even years to resolve,” Sweeney says. “Our system is badly broken. That said, it hasn’t stopped thousands and thousands of workers from organizing.”

Sweeney says that the country badly needs labor reform. But he’s hopeful that it will happen, after a majority of the members of the House signed on to the Protecting the Right to Organize Act (PRO Act).

The law would create penalties for employers that violate workers’ rights, give employees the ability to take their employers to court for violating their NLRB rights, and prevent employers from interfering in union elections.

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Overview and key findings

This report provides a comprehensive analysis of employer conduct in union representation elections supervised by the National Labor Relations Board (NLRB).

Using data obtained through Freedom of Information Act (FOIA) requests, the report finds that unfair labor practice (ULP) charges were filed against employers in four out of ten union representation elections that took place in 2016 and 2017. In addition to the analysis of employer conduct in union representation elections, the report provides information on the “union avoidance” industry.

Disclosures required under the Labor-Management Reporting and Disclosure Act (LMRDA) help to provide information on an industry that operates largely out of the public view. Finally, the report discusses policy recommendations aimed at combating employers’ aggressive efforts to dismantle unions and impede organizing efforts.

The report’s analysis of ULP charges filed with the NLRB shows the following:

  • Employers were charged with violating federal law in 41.5% of all NLRB-supervised union elections in 2016 and 2017, with at least one ULP charge filed in each case.
    • Firings. Under the most conservative measures, employers were charged with illegally firing workers in one-fifth (19.9%) of all elections. Using more comprehensive measures, employers were charged with illegally firing workers in nearly a third (29.6%) of all NLRB-supervised elections.
    • Coercion, threats, retaliation. In nearly a third (29.2%) of all elections, employers were charged with illegally coercing, threatening, or retaliating against workers for supporting a union.
    • Discipline, firings, changes in work terms. In nearly a third (29.3%) of all elections, employers were charged with illegally disciplining workers for supporting a union.
  • Employers were more likely to be charged with violating the law where there were larger bargaining units. More than half (54.4%) of employers in elections involving more than 60 employees (roughly 25% of elections) were charged with violating federal law.

In addition, the report examines the degree to which employers enlist the help of “union avoidance” lawyers and consultants to help them prevent or disrupt union elections. To do so, we analyze publicly available reports filed with the U.S. Department of Labor (DOL) Office of Labor-Management Standards (OLMS). Based on our analysis, we estimate that employers spend nearly $340 million per year hiring union avoidance advisers to help them prevent employees from organizing.

While this report provides a detailed picture of the illegal tactics employers engage in during union election campaigns, it understates the full extent of employer opposition to unionization. ULP data measures only alleged illegal employer conduct, but previous studies demonstrate that, during union elections, employers routinely engage in coercive conduct that is not prohibited under the National Labor Relations Act (NLRA/Act), and weak remedies cause many cases of anti-union behavior to not be filed with the NLRB (Bronfenbrenner 2009). Further, this report looks only at elections supervised by the NLRB. Many union organizing campaigns do not result in an NLRB-supervised election. Finally, LMRDA disclosures track only a small part of the total activity of the union avoidance industry, as loopholes in the law’s reporting requirements allow consultants and law firms engaged in union-busting activity to avoid reporting their work.

What this report finds: The data show that U.S. employers are willing to use a wide range of legal and illegal tactics to frustrate the rights of workers to form unions and collectively bargain.

Employers are charged with violating federal law in 41.5% of all union election campaigns. And one out of five union election campaigns involves a charge that a worker was illegally fired for union activity.

Employers are charged with making threats, engaging in surveillance activities, or harassing workers in nearly a third of all union election campaigns. Beyond this, there are many things employers can do legally to thwart union organizing; employers spend roughly $340 million annually on “union avoidance” consultants to help them stave off union elections. This combination of illegal conduct and legal coercion has ensured that union elections are characterized by employer intimidation and in no way reflect the democratic process guaranteed by the National Labor Relations Act.

Why it matters: Unions are good for workers. Far more U.S. workers want unions than have the benefit of representation today. When workers are able to win union representation and collectively bargain, their wages, benefits, and working conditions improve.

On average, a worker covered by a union contract earns 13.2% more than a peer with similar education, occupation, and experience in a nonunionized workplace in the same sector. Union workers are more likely to have employer-sponsored health insurance, and their employers contribute more toward those plans. They are also more likely to have paid vacation and sick leave. Union workers are more likely to have retirement plans, with their employers contributing more toward those plans than comparable nonunion employers do. Unions also create safer workplaces.

And union workers are covered by due process protections, so that, unlike nonunion workers in the U.S., union workers cannot be fired “at will,” with no warning and for almost any reason.

What can be done about it: Policymakers must take action on legislative reform to restore and strengthen workers’ rights to organize and collectively bargain. The Protecting the Right to Organize (PRO) Act, introduced by Rep. Bobby Scott (D-Va.) and Senator Patty Murray (D-Wash.), includes many critical reforms. The legislation will help ensure that workers have a meaningful right to organize and bargain collectively by streamlining the process when workers form a union, bolstering workers’ chances of success at negotiating a first agreement, and holding employers accountable when they violate workers’ rights.

Indeed, the PRO Act addresses many of the most significant tactics of aggressive employer opposition. This type of legislative reform is needed to restore workers’ rights to join together and bargain for a better life.

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