Violations Undercut U.S. Position on Labor Rights and Trade
August 31, 2000
The cards are stacked against workers in the United States. The U.S. government cannot effectively press another country to improve labor standards while violating them itself. It should lead by example.
Kenneth Roth, Executive Director of Human Rights Watch

Workers' basic rights are routinely violated in the United States because U.S. labor law is so feebly enforced and so filled with loopholes, Human Rights Watch said in a new report Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards .

The 217-page report, "Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards," was based on field research in California, Colorado, Florida, Illinois, Louisiana, Michigan, New York, North Carolina, Washington and other states. Human Rights Watch examined workers' rights to organize, to bargain collectively, and to strike under international norms. It found widespread labor rights violations across regions, industries and employment status. The report is being released on the eve of the annual Labor Day holiday in the United States.

The U.S. government has called for "core labor standards," including workers' freedom of association, to be included in the rules of the World Trade Organization and the Free Trade Agreement of the Americas. But Human Rights Watch charged that the United States itself violates freedom of association standards by failing to protect workers' right to organize.

"The cards are stacked against workers in the United States," said Kenneth Roth, executive director of Human Rights Watch. "The U.S. government cannot effectively press another country to improve labor standards while violating them itself. It should lead by example."

Each year thousands of workers in the United States are fired from their jobs or suffer other reprisals for trying to organize unions. Millions of workers are excluded from labor laws meant to protect workers' organizing and bargaining rights, and their number is growing, according to the report.

Employers can resist union organizing by dragging out legal proceedings for years, the report said. Labor law is so weak that companies often treat the minor penalties as a routine cost of doing business, not a deterrent against violations. Some workers have succeeded in organizing new unions in recent years, the report said, but only after surmounting major obstacles.

According to statistics from the National Labor Relations Board (NLRB), the federal agency created to enforce workers' organizing and bargaining rights, the problem is getting worse. In the 1950's, workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In 1969, the number was more than 6,000. By the 1990's, more than 20,000 workers each year were victims of discrimination that was serious enough for the NLRB to issue a "back-pay" or other remedial order. There were nearly 24,000 such workers in 1998, the last year for which official figures are available. Meanwhile, the NLRB's budget and staff have not kept pace with this growth.

Among other conditions cited in the report that impede workers' freedom of association:

workers fired for organizing and bargaining often wait years for their cases to be decided by labor boards and courts, while employers pay no price for deliberate delays and frivolous appeals;

one-sided rules for union organizing unfairly favor bosses over workers, allowing such tactics as "captive-audience meetings" where managers predict workplace closures if workers vote for union representation;

millions of workers -- including farmworkers, domestic household workers, low-level supervisors, and "independent" contractors who are really dependent on a single employer -- are deliberately excluded from labor law coverage for organizing and bargaining rights. They can be fired with impunity for trying to form a union;

many workers find themselves caught up in a web of labor contracting and subcontracting, which effectively denies them the right to organize and bargain with employers who hold real power over their jobs and working conditions;

employers have the legal power to permanently replace workers who exercise the right to strike;

harsh rules against "secondary boycotts" frustrate worker solidarity efforts.
Human Rights Watch called on the U.S. Congress to ensure rapid reinstatement and full back pay for workers fired for organizing, as well as faster elections and expedited appeals to resolve unfair labor practices more quickly. The U.S. Congress should also ensure that protection of the right to organize be extended to farmworkers, household domestic workers, and others not currently covered by federal labor laws.

Human Rights Watch also called on Congress to ratify International Labor Organization conventions on worker organizing and collective bargaining, and to strengthen U.S. laws protecting these rights.

Selected case studies and workers' statements follow:

Nursing home workers in southern Florida

At the Palm Garden nursing home in North Miami, managers forged signatures on warning notices against Leonard Williams, a key union activist. They backdated the notices, then fired Williams shortly before a union election in April 1996. The union lost the election 35-32. Soon afterward, the company fired Marie Sylvain, another organizing leader.

The NLRB has ordered Palm Garden to offer Williams and Sylvain reinstatement to their jobs with back pay. The agency also ordered a new election because of management's unlawful conduct. The company has appealed both rulings, and they are tied up in courts. Meanwhile, Wiliams and Sylvain must wait.

"Why does it take so long?" asked Marie Sylvain. "I've been fired for more than three years" (now more than four years). "Everything takes too long. Where is the justice? Everything is at the boss's advantage with all these delays. The law gives you something with one hand then takes it away with the other hand." Asked if she would accept reinstatement, Sylvain said, "I would like to come back for one week just to show them the union can win."

Workers at the King David Center in West Palm Beach voted 48-29 in favor of union representation in an NLRB election in August 1994. "I had a determination to get respect," said Jean Aliza, the first of several workers fired for organizing activity at King David. "I am a citizen, and I deserve respect."

The NLRB ruled that the company proceeded systematically to fire the most active union supporters, including Jean Aliza and Ernest Duval. But in 1999 the workers were still not reinstated because of appeals to the courts.

Jean Aliza was "set up" by managers and fired early in the organizing effort, after a year-long "satisfactory" record suddenly became "unsatisfactory" based on warning notices he never saw. The NLRB said that King David "was determined to rid itself of the most vocal union supporter from the beginning," referring to Ernest Duval.

Ernest Duval was still vocal about his union support when he spoke to Human Rights Watch in July 1999, but he was also frustrated. "I see the government protecting management," he said. "It's been four or five years now, and I've got bills to pay. Management has the time to do whatever they want."

High-Tech "Perma-temps" in Seattle

A recent example of temporary agency workers' dilemma is found among workers at the cutting edge of the new economy. More than 20,000 workers are employed at Microsoft's facilities in the Seattle area. But 6,000 of them are not employed by Microsoft. Instead, they are employed by temporary agencies supplying high-tech workers to Microsoft and other area companies. Many have worked for several years at Microsoft, and have come to be known as "perma-temps."

Some Microsoft perma-temps formed the Washington Alliance of Technology Workers (WashTech) in early 1998. But WashTech has a "Catch-22"-type problem. By defining perma-temps as contractors employed by various temporary agencies, Microsoft avoids being their employer for purposes of the NLRA's protection of the right to organize. Meanwhile, the agencies tell temps that in order to form a union that agency management will deal with, they have to organize other employees of the agency, not just those working at Microsoft.

"First we asked our Microsoft managers to bargain with us," said perma-temp Barbara Judd, describing an effort by her and a group of coworkers to be recognized by Microsoft. Management refused. Responding to press inquiries, a spokesman for Microsoft said, "bargaining units are a matter between employers and employees and Microsoft is not the employer of the workers."

Attempts to be recognized by the temp agencies were equally unavailing. "‘We don't have to talk to you, and we won't' is what they told us," said Judd. "They told us we had to get all the temps that worked at other companies besides Microsoft. We had no way to know who they were or how to reach them. Besides, they had nothing to do with our problems at Microsoft."

Barbara Judd's perma-temp post at Microsoft ended in March 2000 when the company announced it was abandoning the tax preparation software project that she and her coworkers developed. "We received two days notice" of being laid off, Judd told Human Rights Watch. Some workers moved to another tax preparation software company, but Judd decided to look for full-time employment. "I don't want to be a part of that system," she said. "Workers who take temp jobs do not realize there is a larger impact than just the absence of benefits. You essentially lose the ability to organize . . . [T]he legal system is just not set up to deal with these long-term temp issues."

Steelworkers in Colorado

Oregon Steel Co. permanently replaced more than 1,000 workers who exercised the right to strike at its Pueblo, Colorado steel mill in October 1997. Many of the replacements came from outside the Pueblo area, drawn by the company's newspaper advertisements throughout Colorado. A company notice declared, "It is the intent of the Company for every replacement worker hired to mean one less job for the strikers at the conclusion of the strike."

On December 30, 1997, three months after it began, Oregon Steel workers ended their strike and offered unconditionally to return to work. The company refused to take them back except when vacancies occur after a replacement worker leaves. Some workers returned under this legal requirement, but most of the Oregon Steel workers were still out of work in 2000 because the company permanently replaced them with new hires.

According to a judge who held an eight-month-long hearing on the case, the company was guilty of interference, coercion, discrimination and bad-faith bargaining. In all, said the judge, Oregon Steel's unfair labor practices "were substantial and antithetical to good faith bargaining."

Under this ruling workers are entitled to reinstatement, because a company that violates the law loses the right to permanently replace strikers. However, the company has appealed the decision and has vowed to keep appealing for years before a final decision is obtained in the case. In the meantime, the workers remain replaced and without their means of livelihood for themselves and their families.

Joel Buchanan, a worker with twenty-nine years in the Oregon Steel plant, told Human Rights Watch, "Before the strike the company was pushing us for forced overtime. When we asked them to hire new people to give us some relief, they told us they couldn't find qualified workers anywhere in Colorado. But when we went out, suddenly they came up with hundreds of replacements."

Apple workers in Washington

Thousands of workers are employed in the warehouse sector of the Washington apple industry. Like apple pickers, many seasonal workers in the warehouses are migrants from Mexico.

Apple warehouse workers are not defined as agricultural workers. They are covered by the NLRA, which makes it an unfair labor practice to threaten, coerce, or discriminate against workers for union organizing activity. But when workers at one of the largest apple processing companies sought to form and join a union in 1997 and 1998, management responded with dismissals of key union leaders and threats that the INS would deport workers if they formed a union.

Here is how one worker described the company's tactics:

At the meetings they talked the most about the INS. . . [T]he company keeps talking about INS because they know a lot of workers on the night shift are undocumented ?I would guess at least half. . . It is only now that we have started organizing that they have started looking for problems with people's papers. And it is only now that they have started threatening us with INS raids . . . They know that we are afraid to even talk about this because we don't want to risk ourselves or anyone else losing their jobs or being deported, so it is a very powerful threat. . .

The union lost the NLRB election even though a majority of workers had signed cards to join the union and authorize the union to bargain on their behalf.

H-2A workers in North Carolina

About 30,000 temporary agricultural workers enter the United States each year under a special program called H-2A giving them legal authorization to work in areas where employers claim a shortage of domestic workers. H-2A workers have a special status among migrant farmworkers. They come to the United States openly and legally. They are covered by wage laws, workers' compensation, and other standards.

But valid papers are no guarantee of protection for H-2A workers' freedom of association. As agricultural workers, they are not covered by the NLRA's anti-discrimination provision meant to protect the right to organize.

H-2A workers are tied to the growers who contract for their labor. They have no opportunity to organize for improved conditions and no opportunity to change employers to obtain better conditions. If they try to form and join a union, the grower for whom they work can cancel their work contract and have them deported.

More than 10,000 migrant workers with H-2A visas went to North Carolina in 1999, making growers there the leading employers of H-2A workers in the United States. North Carolina's H-2A workers are mostly Mexican, single young men, who harvest tobacco, sweet potatoes, cucumbers, bell peppers, apples, peaches, melons, and various other seasonal crops from April until November.

At home "there's no work," workers told Human Rights Watch as their main reason for emigrating. Many of the workers come from rural villages in Mexico. In most cases earnings in U.S. dollars from their H-2A employment are the only source of income for their families and for their communities.

Human Rights Watch found evidence of a campaign of intimidation from the time H-2A workers first enter the United States to discourage any exercise of freedom of association. Legal Services attorneys and union organizers are "the enemy," they are told by growers' officials. Most pointedly, officials lead workers through a ritual akin to book-burning by making them collectively trash "Know Your Rights" manuals from Legal Services attorneys and take instead employee handbooks issued by growers.

On paper, H-2A workers can seek help from Legal Services and file legal claims for violations of H-2A program requirements (but not for violation of the right to form and join trade unions, since they are excluded from NLRA protection). However, in this atmosphere of grower hostility to Legal Services, farmworkers are reluctant to pursue legal claims that they may have against growers. "They don't let us talk to Legal Services or the union," one worker told Human Rights Watch. "They would fire us if we called them or talked to them."