January 25, 2005

VI. Freedom of Association in the Meat and Poultry Industry

I don't mind talking with you now because I am in a union job and I know I have protection. That's what they need in meatpacking.

-Former Nebraska Beef worker active in an organizing campaign, July 2003

Fire the bitch.

-Smithfield Foods attorney instructing a supervisor to dismiss a union activist, 1997 election campaign, Tar Heel, North Carolina

These are union sympathizers who we really don't want.

-Tyson Foods manager explaining why certain workers were not hired at a Tyson poultry plant, February 2003

This report finds that employers in the U.S. meat and poultry industry carry out systematic interference with workers' freedom of association and right to organize trade unions. Some employer conduct falls within the bounds of legality under U.S. labor law, which grants them wide latitude to aggressively campaign against employees' self-organization in violation of international standards. For example, U.S. labor law lets employers hold mandatory "captive audience" meetings to inveigh against workers' self-organizing and to make "predictions" of workplace closure if workers choose union representation as long as they are not "threats" of closure. U.S. law allows permanent replacement of workers who exercise the right to strike, in violation of international standards on the right to strike.

But meat and poultry companies also have crossed the line to widespread violations of U.S. law on workers' organizing rights. In case studies outlined below, federal labor law agencies found many egregiously unfair labor practices by employers. But here failings in the labor law enforcement system come to the fore. Enforcement is so lax, remedies are so weak, and delays are so prolonged that many employers become labor scofflaws who see action by labor law authorities as a routine cost of doing business, worth it to destroy workers' self-organizing efforts. In one of the cases studied here, repeated use of police violence against workers adds a disturbing element of state power used to repress workers.

International Human Rights Standards and U.S. Law

In 2000, Human Rights Watch documented the crisis of workers' freedom of association in the United States in a book-length report titled Unfair Advantage. Drawing on case studies from different industries in every part of the country (including Smithfield Foods' Tar Heel, North Carolina plant, a site of egregious violations of workers' organizing rights), the report found that "freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it . . . a culture of near-impunity has taken shape in much of U.S. labor law and practice." [196]

International human rights law is unambiguous about workers' right to freedom of association. [197] The Universal Declaration of Human Rights declares that, "Everyone has the right to freedom of peaceful assembly and association . . . and the right to form and to join trade unions for the protection of his interests." [198] The two UN covenants repeat these protections.

The ILO's bedrock conventions on freedom of association elaborate these rights, guaranteeing workers "the right to establish and to join organizations of their own choosing without previous authorization" and requiring governments "to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organize." The ILO goes on to declare that "Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment." [199]

In the North American Agreement on Labor Cooperation, the United States and its partners assumed obligations to "promote compliance with and effectively enforce its labor law through appropriate government action" and to "promote, to the maximum extent possible," the labor principles set out in Annex I:

  • freedom of association and protection of the right to organize: the right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests;
  • the right to bargain collectively: the protection of the right of organized workers to freely engage in collective bargaining on matters concerning the terms and conditions of employment;
  • the right to strike: the protection of the right of workers to strike in order to defend their collective interests.[200]

Human Rights Watch's 2000 Unfair Advantage report found the following features of U.S. labor law and practice in violation of international human rights standards for workers:

  • wholesale exclusion of broad categories of workers-farm workers, household domestic workers, independent contractors who are really dependent employees, low-level supervisors, public employees and others-from protection of the right to organize and bargain collectively;
  • widespread firings and other forms of discrimination against workers seeking to exercise rights of association;
  • widespread use of threats, spying, harassment, and other intimidation tactics against workers;
  • effective nullification of the right to strike by employers' use of permanent replacements taking the jobs of workers seeking to exercise this right;
  • debilitating delays in the labor law enforcement process making dead letters of many elements of law that are supposed to protect workers;
  • toothless remedies at the end of the enforcement process.

Workers' Freedom of Association in the Poultry Industry

Historically, worker organizing has rarely taken hold in the U.S. poultry industry. Where unions existed, employers often destroyed them. In the 1970s, for example, Perdue Farms purchased several union-represented plants in the Delmarva peninsula, shut them down, fired union workers, and re-opened them as non-union facilities. "We simply preferred to remain nonunion, and that's our prerogative in America," said company president Frank Perdue. [201]

In a 1995 organizing effort among workers at a Dothan, Alabama Perdue plant, workers reported a KKK-style cross burning at the plant, with the cross bearing a union T-shirt. [202] In that campaign, the National Labor Relations Board (NLRB) found company management guilty of interrogating employees about their union sympathies, confiscating materials from workers supporting the union as they entered the plant, threatening to close the plant if workers chose union representation, and eliminating the attendance bonus to discriminate against workers for union activity. [203]

In a 1996 campaign in Lewiston, North Carolina, Perdue managers told workers that if they formed a union, the company would close the plant and put in an airport; that workers would be fired if they wore union T-shirts; that workers would lose their eligibility for seniority pay if they chose union representation; and that Perdue would close the plant and move it to South Carolina if the union came in. The NLRB found that the company violated workers' organizing rights and ordered a new election. [204]

In 1993, the NLRB found Tyson Foods guilty of unlawfully directing and controlling a union expulsion at its Dardanelle, Arkansas plant. The company interrogated workers about their union sympathies and illegally promised wage increases, bonuses, and other benefits if workers voted to get rid of the union. [205]

In 1995, Tyson was found guilty of illegally eliminating a union chosen by Holly Farms workers when Tyson purchased Holly Farms operations in 1989. Tyson management coercively interrogated workers about their union sympathies, threatened to arrest workers exercising their lawful right to distribute written materials in non-work areas on non-work time, threatened union supporters with firing if they remained loyal to the union, and indeed did fire fifty-one workers for supporting the union. [206] In 2000, Tyson Foods agreed to pay $18,000 to three workers fired at its Vienna, Georgia plant during a worker organizing effort in 1999. [207]

Asked about exercising rights of self-organization, a Tyson worker in Northwest Arkansas interviewed by Human Rights Watch for this report said, "People don't talk about it. Most people are too scared. The company would fire anybody who tried to start a union, and they would blacklist you with the other companies." [208]

An Insight into Employers' View of Workers' Association

A glimpse into Tyson's view of workers' rights came during a trial over an alleged unlawful scheme by the company to recruit undocumented Hispanic workers into its plants. A former human resources manager at a Tyson poultry plant described his role in hiring workers at a time when the company faced staffing shortages and wanted as many American (as distinct from immigrant) workers as possible in full-time rather than temporary positions to deflect attention from its growing use of immigrant workers in full-time jobs. This human resources manager testified that a supervisor asked him, "Why do we have Americans on the temp roll?"

"And I responded, 'Gerald, these are people that are either union sympathizers who we really don't want or people who will cause us trouble or these are people that cannot pass a drug test." [209]

At another point in his testimony, explaining the supposed benefits of having temporary employees supplied by an outside labor contracting agency rather than working directly as Tyson employees, the manager said: "Members of USA Staffing [the temporary employment agency], since they didn't work for the facility could not file a grievance, therefore, the higher the number of USA Staffing temp members that came into the plant, naturally, we can weaken union participation." [210]

A Tyson worker explained:

Tyson always gets rid of workers who protest or who speak up for others. When they jumped from thirty-two chickens a minute to forty-two, a lot of people protested. The company came right out and asked who the leaders were. Then they fired them. They told us "If you don't like it, there's the door. There's another eight hundred applicants waiting to take your job." They are the biggest company so what they do goes for the rest. [211]

Indeed, an example of management views of workers' organizing rights in one of "the rest;" that is, other poultry companies, came to light through an original document obtained by Human Rights Watch. The following memorandum was issued by a manager at the Peterson Farms poultry processing plant in Rogers, Arkansas:

To: Sanitation Crew

From:[Company manager] [212]

Date:8/11/03

Re:Rumors

I have been hearing that some of you are talking about striking, because we have asked you to do some extra things to fill the time that we pay you. You have the right to make your own decisions but I am telling you that if you do try this you will no longer be employed here. If myself or any of the other management team members hear you say this or another employee tells us about this and it can be backed up, you will no longer work here. I want all of you to stay with us but I will not put up with this kind of behavior. I want every employee on third shift sanitation to sign this to acknowledge you understand.

This instruction to employees on its face violates workers rights under section 7 of the National Labor Relations Act (NLRA) to "engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection." This right extends to associational activities generally; there is no requirement that workers be engaged in trade union formation. In this instance, there was no union on the scene and no union organizing aspects to these workers' spontaneous communication with one another. The memo is also unlawful under section 8(a)(1) of the NLRA, which states, "It shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7." Section 7 rights include the right to talk with each other about working conditions and about collective action. [213] This memo says that workers who exercise this right "will no longer work here."

When asked about the circumstances of the memorandum and whether it reflected current company policy, a Peterson Farms official responded:

This was certainly an isolated incident of which no member of Upper Management was aware of and definitely does not support.

We have never had such a policy in place nor will we ever have a policy of this type. We will conduct a through investigation of the matter and take appropriate measures. [214]

Workers' Freedom of Association in Tyson Meat Plants

Jefferson, Wisconsin

Tyson's efforts to keep unions out of its plants extend not just to its poultry plants but to meat processing plants as well. Another Tyson thrust against workers' freedom of association took place in Jefferson, Wisconsin in 2003 when the company hired permanent replacements to break a strike at its factory producing pepperoni and other sausage products. Workers' exercise of the right to strike is recognized in international law as integral to their freedom of association. However, under what is called the Mackay doctrine, U.S. labor law permits permanent replacement of striking workers, and Tyson used the Mackay doctrine to do so. [215] The ILO's Committee on Freedom of Association has condemned this legal doctrine as a violation of freedom of association. [216]

The strike by 470 Tyson workers in Jefferson was wrenched at the start when the local union's president, Gary Gilbertson, died of a heart attack as the strike began at the end of February 2003. Gilbertson had characterized the looming dispute as "union busting and corporate greed at its worst . . . They're trying to flex their muscle, just like Wal-Mart, trying to take over everything and destroying good family-supporting jobs in the process." [217]

Tyson demanded a four-year freeze on workers' wages, cutting starting salaries by more than $2 per hour, cutting overtime and holiday pay, cutting sick leave in half, cutting vacations and holidays, cutting health insurance for retirees, and increasing the employee-paid premium for family medical insurance from $9 to $40 per week. Company management acknowledged that the plant was profitable, but said that workers' $25,000-30,000 annual salaries and benefits made the Jefferson plant "in a luxurious position from our perspective. It's just a case of being an outlier. . . .The cost in Jefferson is out of line and we have to make adjustments." [218]

"It was a good job," said Sharon Guttenberg, a striking worker. "We weren't getting rich, but we were making a living." [219] A labor economist explained, "[Tyson wants] to make their wages and benefits in Wisconsin more or less equal to what they have in the non-union chicken processing plants in Mississippi." [220]

On April 4, 2003, Tyson announced it would hire permanent replacement workers to take the jobs of workers exercising their right to strike. [221] The replacement move sparked anger and resentment in the community. "The community is being torn apart, both emotionally and economically," said a retired employee. [222] Local communities and the University of Wisconsin responded by withdrawing Tyson products from markets and from campus food services, [223] but sales to national pizza chains sustained the company's operation in Jefferson.

In an Open Letter posted on its website, Tyson's Jefferson Plant manager explained:

The plant's current average hourly rate of almost $14.00 is already among the highest average wage rates of any of Tyson's almost 300 facilities in twenty-eight states, from Pennsylvania to Washington. . . .

Changes in the health plan:It is no secret that health costs have skyrocketed. Everyone in America today is affected by this. . . . In light of astronomical increases in costs, which have affected almost everyone in the United States, we believe this is a fair proposal. . . .

Because we have customers who might go elsewhere with their business if we cease supplying them, we have continued to operate the plant. In order to meet this customer demand, it has been necessary for us to hire permanent replacement workers. [224]

It was not necessary for Tyson to hire permanent replacement workers. The company could have hired temporary replacement workers to meet customer demand, as many companies more respectful of workers' rights choose to do to maintain decent relations with their regular employees, many of whom have decades of service with a firm, after a strike ends.

In January 2004, faced with the prospect of a decertification vote by replacement workers, union members voted to accept the company's offer cutting pay and benefits and raising health insurance premium costs. [225] However, union members could not return to work. In violation of international labor standards, they had been permanently replaced. They must wait until replacement workers vacate positions before any who exercised the right to strike may return to their jobs. [226]

Six months after the strike ended, fewer than half of the strikers had returned to work. One still waiting, elevator operator Ron Zimmerman, said, "My wife keeps asking me why I want to go back, and I don't know why. I put in 19 years there. I want to have some closure, I guess. I want to leave on my own terms. I don't know if I'll stay." [227]

A local plumber whose family-based business had done contracting work inside the plant for fifty years, and who respected the workers' picket line during the strike, lost his Tyson work after the strike ended. "None of the contractors has been asked to come back in," he said. "You're taking a serious amount of money out of the economy of Southeastern Wisconsin." [228]

Strike returnees reported a high level of tension in the plant with striker replacements. Jim Weissmann, who returned to the plant in March 2004, said, "I don't know anybody who talks to the replacement workers, period. I know there's one at my end and I don't see anyone talk to him besides other replacements." [229]

Pasco, Washington

Following events at the Jefferson plant, Tyson management interfered with workers' rights of association at its Pasco, Washington beef plant, a former Iowa Beef Processor facility. A disgruntled former local union leader, who lost an election to a reform slate in the 1500-employee plant, reacted to his defeat by gathering signatures on a petition for an NLRB decertification vote to get rid of the union. After the former leader obtained signatures of the legally-required level of 30 percent of bargaining unit employees, the NLRB scheduled a decertification election. Tyson then promoted the former leader to a supervisory position.

The company took the occasion of the NLRB vote to unleash an aggressive campaign to get rid of the union. The company "supports a vote to decertify the union," a manager said. [230] Tyson moved several managers into the plant from other company locations to hold captive audience meetings with groups of workers and one-on-one pressure meetings with individual workers to pressure them to vote against the union.

"We've had meetings with workers, posted information on bulletin boards, distributed flyers and sent mailing to their homes," a company manager acknowledged. "Our message is that many Tyson plants across the country are 'union-free' and enjoy equal or better wages, benefits, retirement, job security and advancement opportunities than the company's unionized facilities-without the burden of paying union dues." [231]

The union filed unfair labor practice charges against Tyson alleging illegal management involvement with and support for employee promoters of the decertification drive, but the NLRB has not yet decided if company actions crossed the line into unlawfulness under U.S. labor law. It is undisputed that the company openly and aggressively interfered with workers' efforts to maintain their union. Whether the company's conduct was unlawful interference under U.S. law is as yet undetermined, but it clearly breached international human rights standards calling for respect and protection of workers' rights of association.

In the end, the company's campaign fell short. Despite massive pressure by management, Tyson workers at the Pasco plant voted 708-657 to keep their union. [232] Instead of accepting the result, however, Tyson management filed objections to the election resulting in more delays and denial of workers' bargaining rights while hearings took place. The NLRB regional office dismissed the company's objections, but Tyson appealed that decision to the full NLRB in Washington. [233]

Worker Organizing at Nebraska Beef

Nebraska Beef workers interviewed by Human Rights Watch in 2003 said that line speeds, injuries, mistreatment by managers, and other abuses compelled them to seek to form a union two years earlier. In June 2001, Nebraska Beef workers filed for an election with the NLRB seeking representation by the United Food and Commercial Workers (UFCW). The UFCW is the nation's principal union for meatpacking workers. It was formed by earlier mergers including, among others, the United Packinghouse Workers. The election took place on August 16, 2001. Employees described events in weeks before the election. Said one:

The main plant manager is Mexican. He knows who are the undocumented workers. He called them in one-by-one to his office and told them that if they voted for the union they would be deported. People were scared the company would find out how they voted. In Mexico the vote is not secret. They thought it was like that here. The documented ones, he told them they would get a 25 cent raise for voting "no." [234]

Another worker said, "The company made workers in favor of the union take off UFCW buttons and stickers where we showed support for the union inside the plant. But they let workers opposed to the union put up all the signs they wanted." [235]

Another described a scare tactic with a powerful effect on the mostly immigrant workforce:

Our supervisor called us in one-by-one. He told everybody that if the union came in, the contract would not let us go home to Mexico for important family events. For us family is everything. If my grandmother dies or my sister gets married I have to go home. It's harder after September eleventh, but we have to do it. The company would let us go and this was supremely important to us. When they told us the union contract would not let us go home, that frightened a lot of people who supported the union. [236]

There is nothing about a union contract that would prevent policies permitting workers to take short leaves for family reasons. Indeed, many union contracts in plants with large numbers of immigrant workers contain provisions guaranteeing this privilege. With this thrust, managers were playing on workers' lack of knowledge of labor law and collective bargaining.

Ex-employee Juan Jose Robles described captive audience meetings-mandatory workplace assemblies where managers state their opposition to worker organizing and do not allow union supporters to speak up or ask questions-that Nebraska Beef employees were forced to attend:

Management called us all into meetings where they made speeches against the union. They showed videos with closed factories, and they blamed the closings on the union. They told us the union would pull us out on strike and the company would bring in new people to permanently replace us. They told us a union contract would not allow them to hire employees' relatives and friends any more. [237]

These management moves exemplify the coercive nature of employer campaign tactics that are permitted under U.S. labor law in violation of international standards on workers' freedom of association. The statements are speculative and prejudicial, but as long as they do not constitute direct threats they are allowed under U.S. law.

"We still thought we were going to win the election," said pro-union worker Juan Jose Robles. "A lot of people were saying yes, yes, I'm going to vote for the union." [238] In the August 16, 2001 NLRB election, 345 Nebraska Beef workers voted in favor of union representation, and 452 voted against representation.

In fact, Nebraska Beef management did cross the line to unlawful threats and discrimination under U.S. labor law. On December 20, following a hearing on the evidence with workers and the company represented by attorneys, the NLRB found management guilty of multiple violations of workers' rights in connection with the election:

  • interrogating employees about their union sympathies and telling an employee he would be fired because he was going to vote for the union;
  • forcing pro-union workers to remove union stickers and buttons from hats and clothing, while allowing anti-union workers to continue such displays;
  • telling workers that if the union came in, the company would stop its policy of allowing workers to return to Mexico for family matters and return to their job at Nebraska Beef; instead they would have to start over at the bottom of the pay scale;
  • telling workers that if the union came in, the company would stop its policy of allowing workers to take an unpaid sick day without a doctor's excuse;
  • deliberately omitting zip codes from the list of eligible employee voters' names and addresses, a list that the company was legally obligated to give to the union. (The NLRB said, "The employer's deliberate deletion of zip codes from the list is evidence of a bad faith effort to impede the union's access to voters.")[239]

The NLRB ordered that a new election be held. However, according to workers interviewed for this report in 2003, the effects of the company's 2001 anti-union campaign multiplied the effects of a 2000 INS raid, and organizing efforts have stalled. [240] "People are still scared," said one worker. "A lot of people think that [the plant manager] knows how they voted." [241] The request by all interviewed workers still employed at Nebraska Beef not to use their names in this report reflects that fear.

"Over time the company got rid of a lot of the leaders," said Juan Jose Robles, who said he was one of them. "I had to take my wife to the hospital at three o'clock in the morning one day in early 2002, and I got to work late. They fired me for absenteeism. I won my case for unemployment compensation for unfair discharge, but they didn't care. They just wanted to get rid of me." Robles finished by saying, "I don't mind talking with you now because I am in a union job [in the construction industry] and I know I have protection. That's what they need in meatpacking." [242]

Worker Organizing at Smithfield Foods

An Election in 1997 and its Aftermath

Smithfield workers have sought union representation from UFCW since soon after the plant opened in 1992. In the Unfair Advantage case study of the Tar Heel plant, Human Rights Watch found "not only abuses of workers' rights by management but also troubling actions by state and local authorities state power was used to interfere with workers' freedom of association in violation of international human rights norms."[243]

"We respect the rights of employees to choose whether they wish to be represented by a union," Smithfield management told Human Rights Watch in a 2004 written reply to questions about events at the Tar Heel plant. [244] But new field research for this report found continuing violations of workers' rights.

The company is quite clear about its continued opposition to unionization of the Tar Heel plant. In a written statement to Human Rights Watch it said:

We do not believe a union is necessary or would be helpful to our employees at our Tar Heel, North Carolina plant. . . . If this location undergoes a union organizing drive or general activity, the company will continue to educate its employees on the value and success we have created together and the drawbacks of union organization for themselves, the company and our customers. . . . On occasion, the company has sought to utilize professional partners in the field of labor relations to assist with the education of labor issues to both the management and employee teams. [245]

In 1997, the union lost an election at the Tar Heel plant after a campaign marked by unlawful intimidation, coercion, and violence. Over a ten-month period in 1998 and 1999, an NLRB judge presided over a trial on the union's charges of unfair labor practices and unfair election conduct by Smithfield in the election. The trial followed issuance of what is called a "complaint" in the NLRB system. The NLRB issues complaints when investigations of charges show reasonable cause to believe that workers' rights have been violated. The board then sets the case for trial before an Administrative Law Judge (ALJ).

The judge in the Smithfield case reviewed documents and heard testimony from all parties and evaluated the credibility of company and union witnesses. All witnesses faced challenging cross-examination by lawyers from the other side. In a 442-page single-spaced decision issued in 2000, the judge made detailed findings of massive abuse against workers trying to exercise their freedom of association. Based on the evidence, the judge found that Smithfield illegally:

  • threatened to discharge union supporters and to close the plant if workers chose union representation;
  • threatened to call the INS to report immigrant workers if workers chose union representation;
  • threatened the use of violence against workers engaged in organizing activities;
  • threatened to blacklist workers who supported the union;
  • harassed, intimidated, and coerced workers who supported the union;
  • disciplined, suspended, and fired many workers because of their support for the union;
  • spied on workers engaged in lawful union activities;
  • asked workers to spy on other workers' union activity;
  • grilled workers about other workers' union activities;
  • suppressed workers' right to freely discuss the union in non-work areas on non-work time and to demonstrate support for the union at work by wearing unobtrusive union insignia;
  • confiscated lawful union literature being lawfully distributed by workers;
  • applied a gag rule against union supporters while giving union opponents free rein;
  • applied work rules strictly against union supporters but not against union opponents.[246]

The judge concluded that the widespread company violations made the election un-free and unfair and ordered a new election in a neutral site. The new election has not taken place. The new election has still not occurred because the company is determined to exhaust all its appeals-a process that can be exceedingly lengthy. [247] As this report is written, Smithfield's appeal is still pending at the five-member NLRB in Washington, D.C. six years after the unfair election was held, and three years after the appeal was filed. The Board's ultimate decision can be appealed to a federal appeals court, meaning that several more years might pass before a final decision in the case.

A Supervisor Speaks Out

During the trial, Sherri Bufkin, a supervisor in Smithfield's laundry department in 1997, testified that company officials and consultants instructed her to probe the union sentiments of employees under her and report her findings to management. [248] In 2002, a U.S. Senate committee held hearings to examine obstacles to workers' exercise of their right to organize. Bufkin testified before the committee, telling senators that

[T]he company brought in attorneys to tell us what to do and how to react the company told us that the attorneys were there to make sure that the union did not get in . . . the lawyers told us what to say to workers to keep the union out . . . Management hired a special outside consultant from California to run the anti-union campaign in Spanish for the Latinos. [249]

At the NLRB unfair labor practice trial in 1999, Bufkin testified that management's outside attorneys told supervisors to apply disciplinary rules harshly against union supporters but not against union opponents and to deny overtime to union supporters but grant it to union opponents. "We were told that we were no longer to give the leniency and leeway that we had given previously and to make sure employees knew that if the Union came in we would not do the things that we had done previously to help them such as being late and excusing it without writeups, things of that nature," she said. [250]

Bufkin's account to the committee of what happened to Margo McMillan, a laundry room attendant under Bufkin's supervision, is a stark example of Smithfield's deliberate interference with workers' rights. According to Bufkin, when the chief company attorney learned of McMillan's support for the union, "He then looked me in the face and told me, 'Fire the bitch. I'll beat anything she or they throw at me in Court.'" [251]

According to Bufkin's testimony,

I told him we could not do that. There was no disciplinary action in her file. I mean there was no grounds for it . . . Margo worked for me for years. I knew Margo. I knew her as an employee. I knew from dealing with her that she had family problems. She's got kids. She's got bills she's got to pay and I begged [management] not to do it. [252]

Nevertheless, management did it. In his 2000 decision in the case, the judge specifically noted that that Sherri Bufkin was truthful and that Smithfield illegally fired Margo McMillan. But the judge had more to say in the matter. He found that a company attorney "intentionally lied under oath at the trial" about an affidavit signed by Bufkin under pressure from management. The affidavit did not correspond to the lawyer's notes of the interview with Bufkin, indicating that the affidavit was concocted by Smithfield attorneys to justify the firing of Margo McMillan. The judge said that a second Smithfield attorney "left himself some 'wiggle' room" in connection with the affidavit matter, but "I do not credit [the second attorney's] testimony," said the judge. He recommended that the NLRB refer the attorneys' conduct to the NLRB's General Counsel to possibly seek disciplinary action on the grounds that "there is a question of whether [the attorneys] suborned perjury or otherwise violated federal statutes involving criminal penalties." [253]

Pressure Continues

Using outside consultants to pressure workers not to exercise their rights of association has continued at Smithfield's Tar Heel plant. A Central American worker told Human Rights Watch:

In March [2003] the company called all the Latino workers into a meeting. A man from California was up in front. He asked "Who is from Mexico?" "Who is from Guatemala?" "Who is from El Salvador?" and so on. He said he was going to tell us about unions, that unions started in the 19th century to get the eight-hour day but that today they don't solve anything. All they do is create problems. They can't do anything about the supervisors or about line speed or about wages. If a union comes in you can lose what you have because everything starts from zero. If you strike you will lose insurance and you cannot get unemployment compensation and the company can hire permanent replacements to take your job. Strikes can last for months. If the union knocks at your door, call the police on them. [254]

Under U.S. law, employers can force workers to attend such captive-audience meetings on work time. Employers can fire workers for not attending the meetings. They can impose a "no questions or comments" rule at a captive-audience meeting and discipline any worker who speaks up. Most often, these meetings include exhortations by top managers that are carefully scripted to fall within the wide latitude afforded employers under U.S. law-allowing "predictions" but not "threats" of workplace closings to deter workers from choosing union representation.

The only limitation on captive-audience meetings is an NLRB rule prohibiting such meetings within twenty-four hours of the election. The board has ruled that the "mass psychology" and "unwholesome and unsettling effect" of captive-audience meetings tend to "interfere with that sober and thoughtful choice which a free election is designed to reflect." [255] It is not clear from NLRB doctrine why twenty-four hours is an appropriate number, or why the same concerns do not apply when management holds repeated captive-audience meetings up to the twenty-four-hour deadline with no opportunity for union advocates to have equal access to communicate with workers during work hours.

Smithfield management followed the 2003 captive audience meetings with what organizing specialists call "one-on-one's," meetings between a supervisor and a single employee. Typically, companies hire consultants to instruct supervisors on how to exploit their personal relationships with workers to disparage the organizing effort.[256] The Central American worker quoted above told Human Rights Watch:

[T]he supervisors went around talking to people individually, giving speeches against the union and asking people: "What do you think the union will do for you?" and telling them "The union can't do anything." My supervisor said if we sign a union card the company will find out and fire us. After the 1997 election the company fired a lot of strong union people. Ninety percent of the people want a union but they are afraid of getting fired. [257]

Smithfield's Use of Police

During the 1997 union representation election campaign, Smithfield orchestrated the deployment of local police forces and company-employed security officials to intimidate employees and, beyond that, to assault and arrest union supporters on the day of the election. [258] Three years later, Smithfield established its own special police force under North Carolina law. There are troubling indications that Smithfield police, both before and after the formation of the "special police" force, are used to create an atmosphere of fear and intimidation to chill workers' organizing efforts.

The 1997 Election

During the 1997 organizing campaign, Smithfield's director of security, Daniel Priest, also held a position as a local deputy sheriff exercising police authority. At the Tar Heel plant, Priest supervised a contingent of twenty-four full-time security guards. He testified in the 1999 unfair labor practice trial that resulted in the NLRB judge's 2000 decision that he had power both to "handle all law enforcement type functions at the plant and to direct the activities of local police." [259] In another legal proceeding arising from events at the election, a federal court described Priest's dual role on the day of the election this way:

He had a deputy sheriff badge clipped to his belt, a sheriff's department radio, handcuffs, pepper spray, and a gun. And he testified that he told [a worker]: "Sheriff's Department, you are under arrest" . . . All this was the natural result of Priest's official role within Bladen County, in which he was expected to perform law enforcement functions at the Tar Heel plant on behalf of the Sheriff's Department. [260]

In addition, according to union organizer Milton Jones, local police and sheriffs (as distinct from Smithfield's security police) "turned up in force" during the pre-election campaign when union advocates attempted to distribute flyers to workers driving into the plant. [261] Priest testified to the NLRB that police officers were "patrolling around the plant, up and down 87 [the main road in front of the plant], which they would have been all week" prior to the election. [262]

"It was hard seeing police cars lined up there every day when we went into the plant," one worker told Human Rights Watch. "It scared a lot of people against the union, especially the Mexican workers." [263]

In his 2000 decision, the judge found specifically,

[T]here was no reason supplied by the Company for why the Sheriff's Deputies were present . . . the Respondent's [Smithfield's] use of the Sheriff's Deputies during the handbilling . . . was an intimidation tactic meant to instill fear in the Respondent's employees. . . . [H]aving up to 10 Sheriff's Deputies in the Respondent's management parking lot . . . doing nothing, except having one deputy come into the plant to inspect a bag, was an intimidation tactic. [264]

The judge found that the top company manager:

[N]ot only knew that they were there, [he] was responsible for them being there. [He] wanted to make a point that the Tar Heel plant was his plant, the Union was going to pay a price for its attempt to organize the employees who worked there, and employees who supported the union would have an old-fashioned example of what can occur when they try to bring in a Union. [265]

The same company manager told a union representative, "I want to make sure you're there for a real ass-whipping. We're going to beat you . . . And we've got something special in mind for you." [266]

The manager's "something special" was an orchestrated assault on and arrest of union supporters. Several dozen Smithfield managers and supervisors packed the small cafeteria where NLRB agents counted the ballots. When it became clear that the union was going to lose the election, these company officials began taunting the union election observers and supporters with racial epithets. [267] When final results were announced, the large management contingent, joined by security guards and by local police officers, began pushing union supporters toward the door out of the cafeteria. Police beat, maced, handcuffed and arrested supporters of the organizing campaign. The assault occurred "on his [the manager's] cue," the judge concluded. It was "done intentionally" and "planned in advance of the vote count." [268]

In devising a remedy for the company's violations, the judge made the extraordinary decision that

Where, as here, an employer initiates physical violence at or near the polling place just after the election results are announced, and it engages in egregious and pervasive unfair labor practices and objectionable conduct, the reasons for favoring conducting a new election on the Respondent's premises have been substantially undermined. A new election should be conducted off premises at a neutral site. [269]

Now: Special Police Status

In 2000, Smithfield secured "special police agency" status for its security force under North Carolina state law, the Company Police Act of 1991. [270] The Act empowers private entities to employ security officers with public police powers. The North Carolina Attorney General's office is supposed to oversee these company police. They are empowered to carry weapons, make arrests, and pursue "suspects" off company property as long as an incident began on company property.

Asked by Human Rights Watch to describe the rationale for acquiring police powers for its security personnel, Smithfield officials responded:

The safety of all our employees is of paramount importance to the company and the need for police related security is therefore apparent. The plant facility also houses an extraordinary amount of valuable equipment and machinery. Given the fact the plant is in a rural area, both the local governmental authorities and the company believed it necessary to ensure thatthe limitedsecurity force on hand hadadequate authority to respond to and dealeffectively withthreats to employeeand plant safety. [271]

Workers interviewed by Human Rights Watch suggest that the "threat" of employee organizing activity is equally a company concern. On November 14-15, 2003, a group of workers on Smithfield's night shift cleaning crew supervised by a contractor named QSI, Inc. spontaneously walked out of the plant to protest the dismissal of coworkers. [272] Roberto Muoz Guerrero told Human Rights Watch about events leading up to the protest, and what happened:

I started working at Smithfield in June. I came from California. I have been in the United States five years. Some of my relatives were working at Smithfield and they told me there were jobs here.

On November 15 we went on strike because management fired the supervisors who backed us up. [273] One manager threatened to call Immigration if we didn't go back right away. The police were out there. When some of us didn't go back, the police told us to leave. I said my car keys were in my locker, I had to go in and get them. The first policeman I talked to said OK, but then his boss said no, and he arrested me. He took me to the jail and wrote up papers for about an hour, then let me go. [274]

The arrest warrant for Muoz Guerrero says that he:

[U]nlawfully and willfully did resist, delay and obstruct D. SHAW, a public officer holding the office of SMITHFIELD FOODS SPECIAL POLICE, by NOT LEAVING THE SCENE. At the time, the officer was discharging and attempting to discharge a duty of his office, INVESTIGATING A DISTURBANCE AT THE PLANT. [275]

Muoz Guerrero told Human Rights Watch, "Everybody is scared now to stick together or to take a stand because they are afraid of getting arrested by the company police." [276] When his trial date came up in February 2004, the police failed to appear for the trial. All charges against Muoz Guerrero were dismissed. [277]

The NLRB regional office investigated workers' charges that their rights were violated because such action is "protected concerted activity" under the National Labor Relations Act, and cannot be cause for reprisals against workers who undertook the stoppage. The board's investigation found that Smithfield "interfered with, restrained, and coerced its employees in the exercise of rights," and the regional director issued a July 2004 complaint setting the case for trial before an ALJ in September 2004. [278]

Specifically, the board's investigation found merit in charges that the Smithfield and its contractor unlawfully:

  • fired eight named employees and several more unnamed;
  • caused employees to be falsely arrested;
  • threatened employees with bodily harm;
  • refused to pay employees for work performed;
  • refused to pay employees their vacation benefits;
  • threatened employees that they could lose their jobs if they selected the Union as their bargaining representative.[279]

The NLRB was equally specific on violations by Smithfield's Special Police, finding merit in charges that "Smithfield Packing Co., Inc. Police and Guards," namely "Danny Priest and other security employees," unlawfully:

  • physically assaulted employees exercising their rights;
  • threatened employees with arrest by federal immigration authorities;
  • falsely arrested employees exercising their rights.[280]

This incident suggests the conflict of interest that can arise when company employees can exercise state police powers while responding to the employer's directives and interests. The potential for a misuse of the police powers in the context of workers' exercising their rights is particularly acute if the company police have not been carefully trained in the technicalities of labor law as well as in regular criminal law and police procedures.

In late 2003 and early 2004 Smithfield posted armed police throughout the Tar Heel plant after reporting telephoned bomb threats. On the heightened presence of police agents inside the plant, a worker told Human Rights Watch:

The company says there is drug dealing and they are getting bomb threats but they did that just so they could fill the plant up with armed police and with plainclothes detectives posing as workers who just walk around and never do any work. It's all part of the anti-union campaign to intimidate us and turn the plant into an armed camp. For those of us from Central America it is especially frightening because where we come from the police shoot trade unionists. [281]

Asked by Human Rights Watch about police training, about recourse available to employees in case of police abuse, and about the potential for conflict of interest between protecting interests of their employer while protecting individual rights, Smithfield Foods provided this written response:

With regards to training, our police force receives training from many sources to include the Chief of Police of the force.

Employees are informed that any type of complaint can be filed with any member of management, the HR department and/or in this case the Chief of Police.

Certainly the police personnel stationed at the company facility could be subject to the same or similar issues and conflicts which affect police stationed at other locations. However,the company does not believe that the individuals involved have allowed any suchissuesto interfere with their adherence to duty in accordance with publicly acceptable standards applicable to law enforcement officers. [282]

[196] See Human Rights Watch, Unfair Advantage (2000), p. 7, 10; also available online at: www.hrw.org/reports/2000/uslabor, accessed on November 15, 2004. Cornell University Press has published a 2004 edition with a new introduction and conclusion updating case studies.

[197] These standards also cover non-citizen workers, irrespective of their immigration status; see text accompanying footnotes 287-88 below.

[198] Universal Declaration of Human Rights, art. 20(1), 23(4).

[199] ILO, text of fundamental conventions relative to freedom of association are available online at: http://www.ilo.org/public/english/standards/norm/whatare/fundam/, accessed on November 17, 2004.

[200]North American Agreement on Labor Cooperation, Annex I, p. 21-22, available online at: http://www.worldtradelaw.net/nafta/naalc.pdf, accessed on November 17, 2004.

[201] See Ben A. Franklin, "Union Battling 'Tough Man' to Organize Perdue Chicken Pluckers," The New York Times, December 22, 1980, p. 22, cited in Robert Bussel, "Taking on 'Big Chicken:' The Delmarva Poultry Justice Alliance," 28 Labor Studies Journal 1 (Summer 2003).

[202] See Ronald Smothers, "Unions Try to Push Past Workers' Fears to Sign Up Poultry Plants in South," The New York Times, January 30, 1996, p. A10.

[203] See NLRB Decision, Order, and Direction of Second election, Cooking Good Division of Perdue Farms, Inc. and LIUNA, 323 NLRB 345 (1997).

[204] See "Decision and Direction of the NLRB," Perdue Farms, Inc. and UFCW, 328 NLRB 909 (1999).

[205] See NLRB Decision and Order, Tyson Foods, Inc. and UFCW Local 425, 311 NLRB 552 (1993).

[206] See NLRB Decision and Order, Holly Farms Corporation and its Successor, Tyson Foods, Inc. and Teamsters, 311 NLRB 273 (1993); upheld in Holly Farms; Tyson Foods v. NLRB, 48 F. 3d 1360 (Fourth Circuit Court of Appeals, 1995).

[207] See Thomas W. Krause, "Union Dispute with Vienna, Ga. Tysons Food Plant Ends with Settlement," The Macon Telegraph, August 4, 2000, p. A1. As part of the settlement, Tyson Foods did not admit to unlawful conduct.

[208] Human Rights Watch interview, Rogers, Arkansas, August 13, 2003. Several interviewed workers referredto their belief that companies in the area maintained a blacklist of union supporters or workers who protested conditions. Human Rights Watch could not independently verify this claim, but fear of a blacklist has a chilling effect on workers' exercise of associational rights.

[209]Tyson Trial Transcript, p. 1341. Tyson Foods and company executives were acquitted of smuggling charges by a jury in the case, successfully defending on the grounds that the recruitment scheme was the work of individual company managers, not a corporate-wide plan. However, the testimony contained here on "union sympathizers" and "weakening union participation" was part of the development of the factual background in the case; it was not challenged or refuted on cross-examination or in other testimony.

[210] Ibid., 1063 ff.

[211] Human Rights Watch interview, Rogers, Arkansas, August 13, 2003.

[212] The manager's name is in the original document, but Human Rights Watch does not include it here because this is a report about systematic abuses of workers' rights distinct from the actions of individuals.

[213] Full text of the National Labor Relations Act is available online at: http://www.nlrb.gov/nlrb/legal/manuals/rules/act.asp, accessed on November 17, 2004.

[214] E-mail communication from Janet Wilkerson, vice president of Human Resources, Peterson Farms, Inc., to Human Rights Watch, November 12, 2004in response to Human Rights Watch's November 11, 2004 request for comment.

[215] See NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).

[216] See International Labor Organization, Committee on Freedom of Association, Complaint against the Government of the United States presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), Report No. 278, Case No. 1543 (1991).

[217] See Mike Ivey and Aaron Nathans, "Strikers Lose Their President; He Dies as Walkout Starts," Madison Capital Times, March 1, 2003, p. 3A.

[218] See Steven Greenhouse, "Unions Finding That Employers Want More Concessions," The New York Times, July 11, 2003, p. A12.

[219] See Lisa Schuetz, "Tyson Standoff Grinds On; Neither Side Budges; Jefferson Feels Pinch," WisconsinState Journal, August 3, 2003, p. A1.

[220] Economist Frank Emspak of the University of Wisconsin, in "Strike continues at pepperoni and sausage plant in southern Wisconsin," Morning Edition (National Public Radio, July 15, 2003).

[221] See Bureau of National Affairs, "Tyson to Hire Permanent Replacements For Striking Workers at Plant in Wisconsin," Daily Labor Report, April 14, 2003, p. A-4.

[222] See Schuetz, "Tyson Standoff Grinds On," p. A1.

[223] See Joe Potente, "UW Bans Tyson Products Till Strike Over," Capital Times (Madison, WI), August 23, 2003, p. 3A.

[224] See "Open Letter to the Community Regarding Terms of the Proposed Contract, available online at: http://www.tysonfoodsinc.com/corporate/news/viewNews.asp?article=1291, accessed on November 17, 2004.

[225] See Bill Novak, "Concessions end Tyson plant strike; New hires to Get $2.10 an hour less," Capital Times (Madison, WI), January 30, 2004, p. 3A.

[226] See Joel Dresang and Tom Daykin, "Tyson workers battled against all odds, and lost; Strike outcome shows how companies gain upper hand, experts say," Milwaukee Journal Sentinel, February 8, 2004, p. 1D.

[227] See Madeleine Baran, "Almost Six Months Later, Aftershock of Strike Still Felt in SmallTown," The New Standard (web-based news service at www.newstandardnews.net), July 6, 2004.

[228] Ibid.

[229] Ibid.

[230] See Jeff St. John, "Workers Rally Before Vote at Tyson Foods," Tri-City Herald, April 9, 2004, p. 1.

[231] See Jeff St. John, "Union Accuses Tyson Officials of Using Unfair Labor Practices," Tri-City Herald, April 7, 2004, p. 1.

[232] See Bureau of National Affairs "Teamsters Survive Decertification Vote at Tyson Foods Plant in WashingtonState," Daily Labor Report, April 13, 2004, p. A5.

[233] See NLRB Region 19, Hearing Officer's Report and Recommendation on Objections, Tyson Fresh Meats, Inc. and Teamsters Local 556, Case No. 19-RD-3576 (June 18, 2004).

[234] Human Rights Watch interview with a Nebraska Beef worker, Omaha, Nebraska, July 16, 2003.

[235] Human Rights Watch interview with another Nebraska Beef worker, Omaha, Nebraska, July 16, 2003.

[236] Human Rights Watch interview with a Nebraska Beef worker, Omaha, Nebraska, July 16, 2003.

[237] Human Rights Watch interview, Omaha, Nebraska, July 16, 2003. Similarly, nothing inherent in a union contract would preclude the maintenance of such hiring practices.

[238] See John Taylor, "Nebraska Beef Vote Also Seen as Test of Partnership with OTOC," Omaha World-Herald, August 16, 2001, p. 25.

[239] See "Hearing Officer's Report on Objections," Nebraska Beef, Ltd. and UFCW, Case No. 17-RC-11993 (December 20, 2001).

[240] The INS raid at Nebraska Beef is discussed below in Chapter VII at footnotes 311 ff and accompanying text.

[241] Human Rights Watch interview, Omaha, Nebraska, July 15, 2003.

[242] Human Rights Watch interview, Omaha, Nebraska, July 16, 2003.

[243] See Human Rights Watch, Unfair Advantage, p. 99.

[244] See "Company Position on Union's [sic] and Organizing Drive," a written reply to Human Rights Watch from Smithfield Foods management, January 30, 2004 (on file with Human Rights Watch).

[245] Ibid.

[246] See Decision of ALJ John H. West, JD-158-00, Smithfield Foods, Inc. and UFCW, Case Nos. 11-CA-15522 et. al. (December 15, 2000) (ALJ Decision).

[247]See Kevin Sack, "Judge Finds Labor Law Broken at Meat-Packing Plant," The New York Times, January 4, 2001, p. A18, reporting that "a spokesman for Smithfield Foods . . . said today that it would appeal the judge's findings to the full National Labor Relations Board, and that if it failed there, it would appeal to the federal courts."

[248] See Smithfield Hearing Transcript, p. 85.

[249] See testimony of Sherri Bufkin, former supervisor, Smithfield Packing Company, Tar Hell, North Carolina, before U.S. Senate Health, Education, Labor and Pensions Committee hearing on "Workers' Freedom of Association: Obstacles to Forming Unions," Washington, D.C., June 20, 2002 (Bufkin Testimony).

[250]Smithfield Hearing Transcript, p. 22.

[251]Smithfield Hearing Transcript, p. 34.

[252]Smithfield Hearing Transcript, p. 35-36.

[253] ALJ Decision, p. 419-420, 423.

[254] Human Rights Watch interview with a Central American worker, St. Pauls, North Carolina, December 9, 2003.

[255] See Peerless Plywood Co., 107 NLRB 427 (1953).

[256] For a discussion of "one-on-one's" and other consultants' tactics, see Martin Jay Levitt, Confessions of a Union Buster (New York: Crown Publishers, 1993).

[257] Human Rights Watch interview, December 9, 2003.

[258] ALJ Decision.

[259]Smithfield Hearing Transcript, p. 5188.

[260] See John Rene Rodriguez; Rayshawn Ward v. Smithfield Packing Company; Daniel M. Priest, 2003 U.S. App. Lexis 15065 (4th Cir., July 30, 2003), p. 13. The case was brought by two workers who were assaulted by Smithfield personnel on the election day. After trial, a jury convicted Smithfield and Priest of federal civil rights violations, on the theory that Priest was acting under color of state law as deputy sheriff and that he was simultaneously a delegated "policymaker" for Smithfield.The appellate court ruled that when he made the arrests Priest was acting as a deputy sheriff-not the company's security chief-so Smithfield did not have any liability for his actions. Moreover, since Priest was acting as a deputy sheriff, the plaintiffs' release of claims against the sheriff's department also covered him.

[261]Human Rights Watch interview, Wilson, North Carolina, July 13, 1999.

[262]Smithfield Hearing Transcript, p. 5172.

[263] Human Rights Watch telephone interview, White Oak, North Carolina, October 12, 1999.

[264] ALJ Decision,p. 358-359, 382.

[265] Ibid., p. 266

[266] Ibid., p. 371.

[267] Ibid., p. 370. Among other slurs, "The union is full of niggers" was cited by union witnesses. Management witnesses denied using racial slurs.

[268] Ibid., p. 382.

[269] Ibid., p. 429-430.

[270] See N.C. statutes, 1991 (Reg. Sess., 1992), c. 1043, s. 1.

[271] "Company Position on Unions and Organizing Drive," a written reply to Human Rights Watch from Smithfield Foods management, January 30, 2004 (on file with Human Rights Watch).

[272] The workers were technically employed by an outside contractor called QSI. Contracting out night shift cleaning work, some of the most dangerous and demanding work in the meatpacking industry, is a common practice by major producers, who insulate themselves from scrutiny about the status of immigrant workers who make up a majority of night shift cleaners in the industry throughout the United States.

[273] "Los supervisores," as interviewed Hispanic workers call them, are also Hispanic and appear to be "group leaders" or "line leaders" rather than management. Human Rights Watch is unaware of whether any court has ruled on the status of such individuals as workers or management for labor law and other purposes.

[274] Human Rights Watch interview with Roberto Muoz Guerrero, Red Springs, North Carolina, December 9, 2003.

[275] See Warrant for Arrest, State of North Carolina, Bladen County, In the General Court of Justice, District Court Division, November 15, 2003 (on file with Human Rights Watch); capital letters in original.

[276] Human Rights Watch interview with Guerrero, December 9, 2003.

[277] Human Rights Watch interview with UFCW representative, March 11, 2004.

[278] See NLRB Region 11, Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing, QSI, Inc. and UFCW, Case Nos. 11-CA-20240, 11-CA-20317; Order Consolidating Cases, Consolidated Complaint, and Notice of Hearing, Smithfield Packing Co., Inc., Tar Heel Division and UFCW, Case Nos. 11-CA 20241, 11-CA 20281 (July 30, 2004).

[279] Ibid.

[280] Ibid.

[281] Human Rights Watch interview, St. Pauls, North Carolina, December 9, 2003.

[282] "Company Position on Unions and Organizing Drive," a written reply to Human Rights Watch from Smithfield Foods management, January 30, 2004 (on file with Human Rights Watch).