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By the 1990s . . . one of every eighteen employees involved in union election campaigns was subjected to discharge or other discrimination to discourage union representation.
-Researcher Charles Morris, based on NLRB records for 1992-1997
The cases described in this section were selected for diversity of sectors, areas of the country, and kinds of workers. The cases were not selected because they are exceptional. According to Prof. Theodore St. Antoine, former dean of the University of Michigan School of Law and president of the National Academy of Arbitrators, the nation's leading organization of labor-management neutrals, "[t]he intensity of opposition to unionization which is exhibited by American employers has no parallel in the western industrial world."127
Workers' rights violations in the United States are widespread and growing. The NLRB used to devote most of its work to running elections for workers to choose or reject representation. Now the bulk of the agency's work involves unfair labor practices, most having to do with employers' violations of workers' rights.128 The accelerating pace of violations is not a new phenomenon. Myriad studies document the rising volume of workers' rights violations. Congressional hearings and reports in the 1970s revealed extensive employer violations and ineffective enforcement of laws supposed to protect workers' rights. These revelations led to a significant movement for labor law reform in 1977-78. Despite passing the House of Representatives and gaining majority Senate support, the reform legislation failed, halted by a minority filibuster in the Senate.
More hearings, reports, and studies in the 1980s confirmed that violations of workers' freedom of association and rights to organize and bargain collectively
were becoming more acute.129 While the numbers of workers fired for exercisingthese rights during the 1950s was measured in hundreds each year, by the 1980s thousands suffered such discrimination annually.
Reviewing NLRB records, Prof. Paul Weiler at Harvard Law School found that unfair labor practice charges against employers increased by 750 percent between 1957 and 1980, while the number of NLRB elections (a measure of workers' organizing activity) increased by less than 50 percent.130
Research in the 1990s continued examining workers' right violations in light of domestic legal principles and the original intent of the NLRA. In 1994 a report by Prof. Richard Hurd of Cornell University documented one hundred recent cases of flagrant workers' rights violations by employers and the failure of U.S. labor law enforcement authorities to remedy the violations. Hurd concluded that "the right to an independent voice for workers has become a mirage."131
The Hurd report was prepared for a presidential commission on worker-management relations chaired by John Dunlop, the dean of American industrial relations scholars and a former secretary of labor. The Dunlop Commission issued its broad study in 1994, reporting these findings:132
* The stagnation of real earnings and increased inequality of earnings is bifurcating the U.S. labor marker, with an upper tier of high-wage skilled workers and an increasing "underclass" of low-paid labor.
* The decline in collective bargaining in the private sector has created an arena for employee-management relations in which most employees have no independent organization to discuss issues with management.
* Adjusted for the number of certification elections and union voters, the incidence of unlawful firing of workers exercising the right to organize increased from one in every twenty elections adversely affecting one in 700union supporters [in the early 1950s] to one in every four elections victimizing one in fifty union supporters [by the late 1980s].
* Most unlawfully fired workers do not take advantage of their right to reinstatement on the job, and most who are reinstated are gone within a year.
* In a national poll, 59 percent of workers said it was likely they would lose favor with their employer if they supported an organizing drive. And 79 percent agreed that it was "very" or "somewhat" likely that "nonunion workers will get fired if they try to organize a union." Among employed nonunion respondents, 41 percent believed that "it is likely that I will lose my job if I tried to form a union."
A 1997 study by the Secretariat of the North American Commission for Labor Cooperation under NAFTA's labor side accord reported that employers threaten to close the workplace in half of the organizing campaigns undertaken by workers in the United States, but rarely in Canada or Mexico. Such threats are used even more intensively in U.S. industries where workers feel most vulnerable to shutdowns and relocations. Employers threatened closings in nearly two-thirds of organizing efforts in manufacturing facilities and warehouses.133
Professor Charles Morris updated the inquiry into the accelerating volume of discrimination against workers who exercise freedom of association. Using NLRB records showing that more than 125,000 workers received back pay because they suffered reprisal for associational activity from 1992 to 1997, Morris concluded that "a substantial number of employers involved in union organizational campaigns deliberately use employment discrimination against employees as a device to remove union activists and thereby inject an element of fear in the process of selecting or rejecting union representation."134 Morris estimated that by the late1990s, one out of every eighteen workers involved in an organizing campaign was a victim of discrimination for union activity.135
A recent study by professors Richard Freeman of Harvard University and Joel Rogers of the University of Wisconsin found that 53 percent of managers said they would oppose any unionization effort in their workplace. One-third said that it would hurt their advancement in the company if the employees they managed formed a union; more than half of these said it would hurt their careers a great deal.136 Freeman and Rogers noted that under U.S. law, managers who refuse to oppose their employees' organizing efforts can be summarily fired.137
In preparing this report Human Rights Watch took into consideration viewpoints of analysts who take opposite views. In general, these analysts view workers' efforts to form and join trade unions and their protection under the NLRA as an unwarranted interference with a free market in labor. They point to favorable treatment for workers and unions in U.S. law, such as exemptions from some antitrust rules.138 They cite the ability to obtain recognition through "card checks" (more on this below) rather than elections.139
Other analysts criticize union-backed proposals for labor law reform and defend Congress's refusal to enact reforms.140 Some defend employers' ability to permanently replace strikers.141 Others see the decline of union representation as a result of market forces, not workers' rights violations.142
The research and analysis of U.S. labor law and practice outlined above was undertaken entirely in a national context. Neither critics nor defenders of the current system looked to international human rights standards to inform their work. What follows here is a series of case studies carried out by Human Rights Watch in a dozen states, covering a variety of industries and employment sectors, analyzing the U.S. experience in light of both national law and international human rights and labor rights norms.
The law gives you something with one hand then takes it away with the other hand.
-Marie Sylvain, a nursing home worker fired for organizing in 1996
Nursing homes fill the landscape of southern Florida serving the peninsula's enormous senior citizen population. To maintain a residential rather than institutional atmosphere, most nursing homes are relatively small facilities employing fewer than one hundred employees. In all, hundreds of nursing homes employ tens of thousands of workers in southern Florida. The largest single group of employees is certified nursing assistants (CNAs). Most are women, many of them are immigrants, and nearly all work at or near minimum wage levels. Benefits like health insurance are available only with a sharp pay deduction that few can afford.
Nursing home aides work in the third most dangerous job in the country, after mining and construction.143 Many CNAs make ends meet by working overtime, which is often required anyway because of severe understaffing in the homes.144 But understaffing and long hours make for rampant health and safety hazards. Workers are frequently injured in lifting, pulling and pushing equipment, lifting and moving residents, and even in assaults by confused but still physically strong residents.
Responding to low pay, long hours, and health and safety hazards, nursing home workers often try to come together with a common voice. The most acute violations of these workers' freedom of association arise during workers' efforts to form and join unions and to bargain collectively. Examining several cases, Human Rights Watch found a pattern of threats, intimidation, and firings of nursing home workers trying to form and join unions and of employers' refusal to bargain when workers succeeded. The cases-several of which have led to NLRB complaints against the nursing homes involved-grow out of a "Unite for Dignity" union organizing campaign in the southern Florida nursing home industry cosponsored by the Service Employees International Union (SEIU) and the Union of Needletrades, Industrial and Textile Employees (UNITE).
Palm Garden: a Close Election Loss
At the Palm Garden nursing home in North Miami, the Unite for Dignity campaign narrowly lost an election, 35-32, in April 1996. Palm Garden management resorted to massive unlawful means including repeated threats to cut pay and benefits if workers chose union representation. Managers forged signatures on warning notices against Leonard "Ted" Williams, a key Unite for Dignity activist. They backdated the notices, then fired Williams shortly before the election.145
Palm Garden management did not disguise its bias against workers' forming a union. Its personnel manual states:
This is a non-union health center . . . If you are approached to join a union, we sincerely hope you will consider the individual freedoms you could give up, and the countless risks you could be taking. We intend to protect those freedoms and prevent those risks for you by opposing unionization of this health care center by every lawful means available.146
Company officials unlawfully threatened loss of benefits and wage cuts if workers chose union representation. One powerful threat was to stop helping workers fill out food stamp applications.147 With such low wages, many employees were eligible for food stamps and needed assistance with English-language forms.148
In a captive-audience meeting, two managers staged a "mock negotiation" portraying a stubborn company proposing to cut pay down to the minimum wage and an inept union bargainer. Then they told workers, "That's what will happen in negotiations," unlawfully communicating to workers that it would be futile to choose the union.149
Marie Sylvain, another union supporter unlawfully fired by Palm Garden, gave voice to workers' concerns in an interview with Human Rights Watch. Sylvain is a single parent supporting two children in Florida and two older children and an elderly parent in Haiti. She told of low pay-Sylvain received food stamps-and health insurance too expensive to afford at more than $60 per pay period, every two weeks.150
Sylvain spoke of severe patient overload, sometimes with a single CNA responsible for twenty residents in a single shift. For each of these, she said, "We have to sit up the patient, brush their teeth, feed them breakfast, take food trays back and forth to the kitchen, change sheets, dress them, take them to lunch, get them intotheir chairs-most of the patients need total help walking, eating, going to the bathroom, everything."151
Sylvain said managers always accepted patient complaints against CNAs or accusations against CNAs from other nursing staff members without hearing the CNA's side of the story. "They don't have respect for us," she concluded. "If you had respect, it would be OK."152
Because "I saw so many bad things," said Sylvain, she became active in the organizing effort.153 "I talked to the other Haitian workers," she told Human Rights Watch. She distributed and collected union cards and spoke up at organizing meetings. She eagerly served as the union's election observer during the NLRB ballot in April 1996. Her dismay at the lost election was made worse, though, when the company fired her at the end of April, telling her that she had given "too much problem at this place" and that she "brought the union to the work place."154
In January 1998, an administrative law judge ordered Palm Garden to offer Marie Sylvain and Ted Williams reinstatement to their jobs, with back pay from the date of their unlawful dismissal.155 The company refused to accept the ruling and appealed to the NLRB in Washington, D.C. In March 1999, the NLRB upheld the judge's order. Palm Garden appealed to the federal court, where the case is still pending with more delays likely before any remedy takes hold.
"Why does it take so long?" Marie Sylvain asked Human Rights Watch. "I've been fired for more than three years" (now 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."156
A worker still employed at Palm Garden, who asked not to be identified, described conditions at the home while the NLRB case languishes in the courts. She makes $6.31 per hour for seventy-five hours' work every two weeks. She has four children but does not take health insurance because it is too expensive, morethan $60 per pay period. She uses a cash-only emergency clinic for primary health care.
"Everybody is scared now," she explained to Human Rights Watch. She said everyone knows Ted Williams and Marie Sylvain were fired for their union support. "I would get fired if I took up for the union," she added. She said that people still want a union, but "people want it to be automatic, not with a lot of trouble."157
The administrative law judge who ordered Williams and Sylvain reinstated to their jobs also ordered a second election at Palm Garden. The company appealed that part of the ruling, too. The NLRB upheld this order in its March 1999 decision, but Palm Garden appealed to the federal court where the case is awaiting a ruling.158
Villa Maria: a Spy-filled Election
The Archdiocese of Miami operated the Villa Maria nursing home in Miami, where workers began an effort to form and join a trade union in 1995 and narrowly lost an NLRB election in May 1996. "The workload doubled in the five years before the election," a Villa Maria worker (who asked not to be identified) told Human Rights Watch. "I have twelve or thirteen patients." While workload increased, benefits shrank, she said. " Health insurance used to be free, but now it's $30 a pay period [every two weeks]."159
Despite extensive Catholic Church pronouncements supporting workers' freedom of association and the right to organize and bargain collectively,160 Villa Maria management launched a concerted attack on the workers' attempt to form a union. An administrative law judge found, for example, that a supervisor infiltrated a union meeting by signing a union card with a false name to spy on workers and report attendance back to management.161 In a series of captive-audience meetings in January 1996, management told workers that if they signed any union papers "we would lose our pension . . . we would lose our home."162 The company assigned CNAs to additional weekend work to discourage union activity.163
The administrative law judge found that Villa Maria management mobilized new armed security guards during the union organizing campaign to intimidate workers and spy on union activity. In addition to newly hired security agents at the site, archdiocese administrators sent additional security forces from other facilities to Villa Maria during shift change times, when union advocates distributed flyers to coworkers. Security guards held clipboards and appeared to write the names or license numbers of workers who accepted union flyers.
As found by the administrative law judge, management instructed some supervisors to stand on the roof of the nursing home to observe workers entering a nearby restaurant to meet with union representatives. Other supervisors were told to follow workers to the restaurant and report back on those who met with union representatives. Consultants hired by the company to direct its anti-organizing campaign also joined in the illegal surveillance scheme.164
Security guards "walked the floor" in the weeks before the election, a Villa Maria worker who requested anonymity told Human Rights Watch.165 "You didn't know who they were. They had walkie-talkies. We felt like we were being watched all the time." Two consultants also "walked the floor," the worker told Human Rights Watch, "talking against the union." In captive-audience meetings management warned of strikes, lost pensions, lost insurance and other harm.
The results of the NLRB election were 65-59 against union representation, although a majority of workers had earlier signed cards authorizing representation. An administrative law judge found Villa Maria guilty of unfair labor practices and illegal election campaign conduct and ordered a new election.166 The company refused to accept the judge's ruling and appealed it to the NLRB in Washington, D.C., where the case is pending nearly four years after the first, tainted election.
The Palace: Organizing Nipped in the Bud
Some workers' organizing attempts are terminated at early stages by firing key worker activists. "When I look for a new nursing home job, they tell me not tocome back after they learn about the Palace," Jewel Parham told Human Rights Watch.167 Parham was a CNA making $5.50 per hour when she sought to form and join a union at this 200-employee Miami nursing home in late 1997. As documented in an NLRB complaint, management retaliated by firing her and four other movement leaders in a single week in January 1998, crushing the organizing effort before it could reach an election.168
She was not especially interested in unions at first, Parham told Human Rights Watch. "But I thought it was a good idea" when another worker approached her, she said. "We needed something. We had way too many patients each. Health and safety was a big problem. Our pay was low, but they paid part-time agency employees a lot more for the same work."169 Citing one health and safety problem, she said the employer refused to furnish protective clothing for CNAs when they bathed residents, even with a scabies outbreak among those they were bathing.170
Parham became active in the organizing movement, inviting coworkers to meetings, including one at her home in January 1998. Management learned of the organizing effort.171 The first victim of what Parham called a "rampage" was Dorothy Grace, another activist who had meetings at her home. She was fired on January 26, 1998. The following day, Jewel Parham and others distributed a letter protesting Grace's dismissal. The Palace fired Jewel Parham on January 28 and three other activists on January 29.
"They told me, `We no longer need your services,' with no other reason given," Parham told Human Rights Watch. Revealing the fragility of workers' confidence in their rights, Parham sees the main injustice as management's not giving her a chance to drop her union activity. "I think it was unfair," she told Human Rights Watch, "because they never let me say, `I'll stop what I'm doing if you let me keep my job.' I was just trying to see if the other people were interested in the union. We wanted to make it better for the residents."172
Parham and her fired coworkers filed unfair labor practice charges with the NLRB. The regional office found merit in their charges and issued a complaint several months later.173 The complaint noted that management supplemented the firings with threats of more discharges, lost benefits, and closing the home ifworkers selected union representation. But by then management's retaliation had worked. "After the firings everybody clammed up," Parham told Human Rights Watch. "They were afraid . . . Even now I'm shunned by people who used to be my friends there. They're afraid of losing their jobs."174 Palace workers and the Unite for Dignity campaign abandoned the organizing effort.
The Palace management settled the NLRB case with modest payments to the fired workers and their agreement to forego reinstatement.175 By then "everybody had other jobs and didn't want to go back," said Parham. But she herself had difficulty. When she first applied for a new job she did not list The Palace as her prior employer, fearing a blacklist effect. But, she told Human Rights Watch, the new home found out she had worked at The Palace and refused her a post for not properly completing the application. However, she adds, after listing The Palace, she still was unable to find work even with a demand for experienced CNAs in the industry. Parham said she is now going back to school and looking for work in a new field.176
King David: an Election Won-and a Five-Year Wait
The mostly Haitian CNAs and dietary 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."177
Union adherents prevailed in the face of a massive illegal campaign by management. The campaign began with a common tactic: suddenly applying attendance rules harshly against union supporters after years of granting exceptions to accommodate employees' needs. As the administrative law judge who heard the evidence found, "It is abundantly clear that prior to the onset of union activity the strict provisions of these rules were seldom enforced and . . . that management and employees viewed the handbook more as a loose guideline. . . ." However, said the judge, after workers began organizing, the company "dusted off its handbook andbegan to utilize it to harass and discriminate against its employees who supported the union."178
Workers openly began their organizing effort early in 1994. In May 1994, King David management issued a new rule barring workers from speaking Creole to each other with residents in earshot, calling it "verbal abuse" of patients. Management then proceeded to "write up" key union supporters. The administrative law judge found that King David "created the rule as a vehicle by which it could limit the employees' ability to engage in union activity. It is clear that management considered the union organizing activity to be Haitian business."179
King David management proceeded systematically to fire active union supporters. Jean Aliza, Lude Duval, Marie Larose, Marie Pierre Louis, Michelle Williams, Carline Dorisca, and Ernest Duval were all fired on trumped-up charges. They were ordered reinstated by the administrative law judge who heard testimony and reviewed documents, and the NLRB upheld the judge's order.
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.180 Lude Duval was fired next for not having a CNA certificate, though she had three years of college toward an RN degree and had passed a CNA test administered by King David (by contrast, another employee, opposed to the union, who lacked a CNA certificate, was given alternate work until she obtained a certificate). Duval got her certificate a month after she was terminated, but King David refused to take her back.181
Marie Larose was fired after she refused a supervisor's peremptory order to take off a union button.182 Michelle Williams was fired for having fourteen "call-ins" (calling in to say she would not come to work), while a leader of an anti-union employee group was untouched with twenty-two call-ins.183 Management "concocted" a misconduct charge to get rid of Carline Dorisca.184
King David "was determined to rid itself of the most vocal union supporter from the beginning," said the administrative law judge's ruling, referring to ErnestDuval. Duval told Human Rights Watch he told a company manager, "I'm happy I'm in this country because I'm free, I can choose, I choose for union," after the union won the NLRB election in 1994, where he was a union observer.185 Just days later, Duval was fired on trumped-up misconduct charges "clearly for this enthusiastic support for the union," said the judge.186
Ernest Duval was still vocal about his union support when he spoke with 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."187
Duval and other union supporters were illegally fired in 1994 when workers voted in favor of union representation. On August 6, 1999, the NLRB upheld the administrative law judge's decision. Based on calculations of Duval's interim earnings during the years he was unlawfully dismissed from King David, he was entitled to $1,305 back pay and $493 interest for a total of $1,798. Jean Aliza, the first worker fired in the union organizing effort, was granted $1,207 back pay and $586 interest for a total of $1,793.188
For such modest financial liability, company management has succeeded in preventing workers' exercise of freedom of association. Even though King David workers had won their election, bargaining had ground to a halt. The remaining workers feared for their own jobs if they became active in bargaining or acted as union stewards. "I don't know the people at King David now," said Ernest Duval. "A lot of the older people who voted for the union have left. They hire all new people who hear a union gets you fired or they can't get raises because of the union."189 Union representative Dale Ewart told Human Rights Watch, "[W]e can't even get a committee to the bargaining table. People are absolutely scared. Everything they see is a disincentive to get involved."190
Duval returned to the nursing home in December 1999. He was the only one of the unlawfully fired workers who returned. "The government told me to go back," he told Human Rights Watch. "They told me not to worry, my rights would be respected."191 In March 2000 Duval left the workplace and filed a new unfair labor practice charge of discrimination for union activity. Duval alleged thatmanagement assigned an employee to constantly watch him and report any potential infraction of work rules. "I don't feel safe," Duval told Human Rights Watch. "They threatened to fire me."192
Avante at Lake Worth: Leaders Fired for Speaking Creole
Thousands of Haitian immigrants have become certified nurse assistants in Florida nursing homes in recent years as they seek a foothold in the labor market and aspire both to provide for their families and advance in the health care field. The mostly Haitian-American workers at the Avante chain's nursing home in Lake Worth, Florida voted overwhelmingly in favor of union representation by the SEIU by a 56-16 vote in March 1999.
The March vote was a second election, following an earlier 77-24 tally in favor of representation in November 1998. Avante management had objected to the results of that first vote and gained a second election on the grounds that a Creole interpreter arrived late at the NLRB election.193 In management's view, the delay in providing translation had deprived some Haitian workers of assistance with questions about the voting process. The NLRB had agreed and held the second election, where workers repeated their overwhelming vote in favor of union representation.
Avante challenged the second election now claiming, among other objections, that pre-election notices were not fully translated into Creole.194 The NLRB dismissed all the company's new objections as unfounded, however, and ordered the company to bargain with the union. The company has appealed that order and launched a process of legal appeals that may last for several years.
But Avante management's concern for the rights of Creole-speaking employees appears to be selective. In December 1999, after promulgating a "No-Creole" rule forbidding Haitian-American workers from conversing in their native language, Avante fired Marie Pierre, Jean Reuter and Propheta Masse for allegedly violating the rule. All three of these CNAs were active in the union organizingeffort and in the continuing effort to hold their organization together while the company appealed the election results favoring union representation.
Marie Pierre had been a union observer at the elections. "After two elections they knew who are the leaders of the union," Pierre told Human Rights Watch.195 She had worked at Avante for ten years when she was fired. Pierre helped lead the organizing effort because, as she put it, "[W]e couldn't take any more disrespect. We needed somebody to represent us. We know our job, we love our job, we love our patients, but management doesn't respect us."196
Jean Reuter, a six-year employee, told Human Rights Watch in a separate interview, "I was always outside at the union demonstrations. Inside Avante I always defended other workers. They came to me for help. I talked to the supervisor for them."197 Like Pierre, Reuter expressed his motivation for organizing: "[W]e needed dignity and respect. They don't respect people."198
Avante management also appeared to be selective in formulating rules about non-English languages spoken by employees. According to Pierre and Reuter, most of the Haitian workers were supportive of the organizing effort. A smaller group of Spanish-speaking employees was opposed to the union, they said, and management did not issue any rule prohibiting or limiting employees from speaking Spanish with each other at work.199
Like the workers at King David who waited five years for a reinstatement order, and like other workers interviewed for this report in cases described below who have been out of work even longer after being unlawfully fired, Marie Pierre, Jean Reuter and Propheta Masse could be waiting several years for their firings to be resolved. In the meantime, in a workplace where employees twice voted emphatically in favor or union representation, their right to organize and bargain is frustrated and their key leaders are fired.
A Management View
For every case study cited in this report, Human Rights Watch made written requests for interviews with owners or managers of companies where workers sought to exercise the right to freedom of association. Of the Florida nursing home owners or managers asked for interviews, only one responded. This senior manager offered key insights into management's views on workers' self-organization in atelephone interview conducted September 7, 1999. He asked that neither he nor his company be identified.
The manager said that there is an important distinction between the nursing home industry and other service industries. The nursing home industry is the second most regulated industry in the country, he said, after nuclear energy. It is also heavily dependent on government reimbursement for its services. Government payments make up more than 75 percent of the industry's income. The industry's profit margins are only 1 to 2 percent if they make a profit at all.
"We are very pro-worker," the manager said, "but when a union comes in they [the union] can't do anything about the wage base or benefit base." He said that the biggest problem relates to state regulation. "Union facilities get poorer surveys from state regulators," he said, "because unions make it hard to get rid of bad employees." For example, he said, if a resident complains about mistreatment by a worker, "we are obliged to discharge that employee. The union makes it more difficult. They make it hard to fire employees who underperform. Unions defend the indefensible."200
Having a union "doesn't allow me to give bonuses subjectively to employees who do a really good job," said the manager, and "it's hard to make wage adjustments for certain groups without doing it for the rest." With a union, he added, "it's hard to get outside agency employees when we want to. We have to offer overtime to union workers." In all, he concluded, "the concern is more operational than financial."
Regarding union organizing efforts, this manager said, "It's all sales and marketing. The union comes in and promises everything. They promise the world-`I'll make everything better, all you have to do is vote for it.'" He said, "I do believe that most union reps are sincere and see it as a service," but added, "They promise what they can't deliver." He also criticized "a significant ethnic bent that they put in their marketing" by appealing to immigrant worker groups facing U.S.-born owners and managers.
"I'm bothered that the union can visit any employee's home," the manager said. "A couple of my people said they felt intimidated. The unions exploit some of their rights." He acknowledged that "delays typically do work to management's advantage," but added, "When the union gets in, the NLRB works to the union's advantage-they can file charges willy-nilly and tie you up in court."
Asked whether the right to form and join a union is a basic human right, the manager said, "I don't know. I'm not an expert. It's probably an important right. We as a pro-worker company support workers' rights." However, the official added, "In a capitalist economy the benefits that a union gives are more contrived than real. If you're a good worker, you can get a good job. I need to be competitive in terms of good workers."
"These people have very hard jobs," the manager told Human Rights Watch, speaking of CNAs in the nursing home industry. "The government has not done a good job to keep up reimbursement rates to keep wages up." Asked whether unions and employers in the industry could work together to press government for higher rates, he characterized this approach as "creating a health care crisis to force the government to capitulate-it happened in Connecticut." He concluded, "It's all right if they want to play chicken with the government, but not with my body."
The manager said that theoretically it might be a benefit for unions and managers in the nursing home industry to cooperate, but "in practice in Florida we don't have that kind of relationship with unions." The manager pointed to union campaign tactics giving information he saw as false and taking out full-page newspaper advertisements blasting company owners. "This doesn't engender a spirit of cooperation," he concluded.
San Francisco, California Hotels
You gave up your right to express your opinions.
-A San Francisco hotel manager to workers who chose union representation201
In 1980, Marriott Corporation agreed with the Hotel and Restaurant Employees union (HERE) to abide by a "card-check" for workers' choice of union representation at a new hotel the multinational hospitality company was building in San Francisco. Twenty years and a series of judges, mediators, and arbitrators later, all wrapped up in myriad unfair labor practices, the company's reneging on its agreement has never been redressed.
A "card-check" is an alternative method for determining majority sentiment among workers for union representation. Under a card-check agreement, an employer and a union set a period of time for workers to sign cards authorizing the union to represent them in collective bargaining. A typical agreement contains safeguards to ensure that cards are signed voluntarily. It also provides for a"check," hence the name, by a respected, neutral person or organization verifying the authenticity of the cards and the signatures, and certifying whether a majority of workers have chosen representation. The card-check method is an accepted, legal alternative means for workers to choose collective bargaining.202
HERE and many hotel and restaurant companies have made card-check agreements a viable method of determining workers' sentiment. The card-check method has been applied at most new hotels and resorts in Las Vegas, allowing cleaners, bellpersons, cooks, servers and other workers to obtain good wages and benefits while avoiding labor strife.203 Other unions and employers with relatively stable bargaining relationships have made card-check agreements an accepted means of testing majority sentiment in other workplaces of the company, including the Union of Needletrades, Industrial and Textile Employees (UNITE) with Levi Strauss, the Communications Workers of America (CWA) with AT&T, and the United Food and Commercial Workers (UFCW) with several regional supermarket chains.
In addition, in two of the important cases studied for this report (discussed in detail in New Orleans, Louisiana Shipbuilding and Washington State Apple Industry below), card-check agreements between unions and management resolved long, acrimonious disputes. These cases are worth noting briefly here as examples of the benefits of a card-check mechanism, if it is mutually agreed upon and satisfies workers and employers.
Apple workers seeking representation by the Teamsters union at the Stemilt Bros., Inc. packing and shipping facility in Wenatchee, Washington agreed with management in April 1999 on a card-check procedure to settle an unfair labor practice case. The settlement was reached near the end of a long hearing before an administrative law judge growing out of a 1998 NLRB election marred by threats, intimidation, and firings.204
Under the card-check agreement, Stemilt workers had four months to obtain signatures of a majority authorizing union representation.205 Both workerrepresentatives and Stemilt management agreed not to make any references to immigration, raids, the INS or deportation as part of their campaigns. While preserving the ability to communicate with its employees about its desire to have employees remain non-represented, the company agreed not to use an outside consultant. Workers agreed that Teamster employees would not engage in organizing activity on Stemilt property.206 The parties agreed on safeguards for integrity of the cards, including the text of the card statement, non-coercion guarantees, even that signatures would be made in blue ink. They also agreed on an arbitrator and an expedited mechanism for resolving disputes over the card-check agreement.207 In November 1999 the neutral arbitrator certified that a majority of Stemilt workers chose union representation. Bargaining got underway early in 2000.
At the Avondale shipyard in New Orleans, a bitter dispute was resolved when new owner Litton Industries, which purchased Avondale in 1999, agreed on a card-check procedure for determining whether a majority of workers desired union representation.208 Although the agreement allowed a one-year period for the union to obtain signatures, a substantial majority signed cards within a few weeks. Litton accepted the outcome and began bargaining with the workers' union, putting an end to nearly a decade of turmoil and strife at the shipyard.209
In contrast to these examples, Marriott refused to honor its card-check agreement with Local 2 of HERE when the new San Francisco hotel opened for business in 1989. The company and the union had agreed earlier that a card check rather than an NLRB election would be used to determine workers' choice of representation, and that management would remain neutral while workers made their choice.210
Instead, management launched a campaign against union representation that is still being fought. HERE had to sue Marriott for breach of contract to enforce the card-check agreement. A district court ordered mediation, which led finally to a new card-check agreement in early 1996.
An independent arbitrator was picked to verify the cards. In October 1996, the arbitrator certified that a majority of workers chose union representation.
Marriott then intensified its campaign against the union. A complaint issued by the NLRB found merit in unfair labor practice charges throughout 1997 and 1998 that managers:
* accused workers of being "union plants;"
* ordered workers not to talk about the union under pain of discipline;
* told workers that signing a union contract was against Marriott's company policy;
* prohibited workers from distributing union flyers in non-work areas on non-work time;
* picked up union flyers and threw them in the trash;
* told workers they would get no raises until the union was gone;
* told workers "you gave up your right to express your opinions as soon as you chose Local 2 as your representative;"
* granted raises to non-represented workers while withholding them from workers who chose union representation to punish them for choosing a union;
* held captive-audience meetings to discuss bargaining issues without union representatives present;
* fired key union activists because of their involvement with the union.211
Marriott reached a settlement with the NLRB with promises not to repeat the cited conduct and to pay union-represented workers the wage increases earlier granted to non-union workers. However, the company refused to settle the firingsof two workers active in the organizing and bargaining effort, and refused to settle another meritorious charge involving back pay for medical benefits denied to workers who chose union representation. Based on these refusals, the union has appealed the settlement to the NLRB in Washington, where the case was still pending at the time of this report.
Meanwhile, Marriott workers who chose union representation by a majority showing in the card-check method remain without a collective bargaining agreement. Sporadic negotiations resumed in 1999 after no bargaining took place for twenty months, but they have not yielded results. Key union leaders fired for exercising their right to freedom of association remain outside the workplace.
One of the workers fired because of his union support, Grover Sanchez, told Human Rights Watch, "It's unfair that the company can fire people and let them wait and wait."212 In the meantime, Sanchez has found a job at the new W Hotel in San Francisco. Affiliated with the Starwood Hotel Co. group that includes Westin and Sheraton hotels, the W agreed in May 1999 to a card-check method for workers to choose representation by HERE Local 2. The card-check agreement guaranteed workers' choice and contained a procedure for resolving any disputes over cards' authenticity. Under the agreement, union advocates were granted access to the workplace to discuss worker organizing without affecting work operations. A local Catholic priest chosen jointly by HERE Local 2 and W Hotel management verified that a majority of workers chose representation. Workers and hotel management moved swiftly to completion of a collective bargaining agreement.
Sanchez explains, "With the contract, it's better. There's no favoritism. The worker is more respected. One feels more secure." However, said Sanchez, he will return to the Marriott if he finally wins a reinstatement order "because I would have high seniority and with the union it would be respected." Sanchez said he was one of the first workers hired at the Marriott when it opened for business in 1989.213
Marriott International, Inc. declined to comment or respond to questions from Human Rights Watch about the San Francisco Marriott dispute. Instead, a company official referred Human Rights Watch to a newspaper article for what he termed "insight into both parties' positions and the departure points."214
The article characterized the dispute as one "between two very different sets of workplace rules and cultures."215 According to the article, Marriott "rejects ideas such as a seniority system and fixed job descriptions-both longtime practices in unionized hotels." In contrast, Local 2 "insists that traditional practices like seniority in assigning shifts are essential to a fair and dignified workplace." Both sides agree that "the dispute doesn't center on wages, which are about $1 per hour higher at the Marriott than at other union hotels."216
Marriott management stated that "they want us to implement work rules that we really believe would hurt our customers and are not in the best interest of our employees." A workers' representative replied that "we're not trying to take away their right to manage, but there's no reason to require cooks to mop floors."217
The article cited by Marriott management contrasted views of two workers. Room-service waiter Ramón Guevara was quoted as saying "he wants a union contract with seniority provisions to prevent favoritism by management," adding "`managers put personality into the (staffing) decisions. They penalize people who don't look as good or who don't speak as good English.'" Guevara also cited overtime policy as a problem, saying that Marriott managers arrange workers' schedules to avoid overtime pay requirements. "`I can work 10 days in a row and not get one single minute of overtime pay . . . You rarely get two days off in a row.'" Cook Kenny Minnis told the reporter, "`we're the highest-paid hotel in the city and we have a benefits package second to none. It's like a family. In this town, there's no better hotel to work for and be represented by.'"218
Referring to the 1980 card-check agreement between Marriott and HERE Local 2, the article concludes, "By now, the dispute between Marriott and Local 2 is almost as old as some of the hotel's workers . . . Local 2 and Marriott spent years in court fighting over the interpretation of that agreement. Finally, after a court ruling in its favor, Local 2 turned in union cards representing more than half of Marriott's workers in 1996. The two sides started bargaining for a contract."219
North Carolina Pork Processing
It really hurt us that the people only heard one side.
-A worker who sat through captive-audience meetings in a 1999 organizing campaign
Dominating the flat, sparsely populated terrain around it, where tobacco and sweet potato farms are giving way to hog growing, Smithfield Foods' incongruously immense hog-processing plant in Tar Heel, North Carolina draws more than 4,000 workers each day from the eastern half of the state. Smithfield is the largest pork producer in the United States. Its Tar Heel plant is the largest hog-killing facility in the country. Workers there slaughter, cut, pack and ship more than 25,000 hogs a day.
Not many workers stay long. Low wages and hard working conditions contributed to a turnover of more than 20,000 employees at the plant between 1993 and 1997.220 "Do you know what it's like to go home to your kids every day with your arms aching and you're smelling like hog blood and guts?" said one worker who stayed. "You don't want to pick them up, and they don't want you to. What kind of a life is that for eight dollars an hour?"221 He asked not to be identified, since he is active in trying to form a union at the Smithfield plant and is fearful of retaliation by company management.
A Pattern of Abuse
Smithfield workers have sought union representation from United Food and Commercial Workers (UFCW) Local 204 since soon after the plant opened. Wages are substantially lower than pay at other Smithfield locations, including some where workers have formed UFCW local unions. According to NLRB complaints, ten workers were fired between 1993 and 1995 for union activity at the Smithfield plant, and five more organizing leaders were fired in 1997 and 1998.222
Two NLRB elections were held at the Tar Heel plant, one in 1994 and one in 1997. The union lost both but has filed objections to the latest election based on alleged management misconduct in both campaigns. Because the misconduct also involved unfair labor practice charges which the NLRB regional office found meritorious, the objections case has been consolidated with unfair labor practice cases in a single proceeding stemming from both organizing drives.
Besides firing key union activists, Smithfield management opposed workers' organizing efforts with interference, intimidation, coercion, threats, and discrimination. These unfair labor practices came so fast and furious that a hearing originally set for 1995 on complaints from the 1994 campaign did not take place until 1998-99 as new complaints were consolidated with earlier ones.
The NLRB complaints describe in detail Smithfield's offensive against union supporters. In dozens of instances cited in the complaints, Smithfield managers and supervisors:
* issued oral and written warnings and suspensions against union supporters;
* threatened to close the plant if a majority of workers voted for the union;
* threatened to deny pay raises if workers chose the union;
* threatened to deny promotions to union supporters;
* threatened to fire workers who supported the union;
* threatened to fire workers if they exercised the right to strike;
* threatened to force workers to strike if they chose the union;
* threatened that workers who went on strike would be blacklisted from employment at other companies;
* threatened to have workers arrested for distributing union flyers;
* confiscated union flyers from workers;
* asked workers to spy on other workers' union activity;
* grilled workers about other workers' union activities ;
* interrogated workers about their own union sentiments;
* indicated to workers that management was spying on their union activities;
* did spy on the activities of pro-union 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;
* offered benefits to workers if they would drop support for the union;
* assaulted and caused the arrest of an employee in retaliation for workers' engaging in union activity.
Testimonies: a Management-Recruited Worker and a Supervisor
Most of these violations occurred not once but repeatedly before, during, and after the two elections at Smithfield's Tar Heel plant. Some of the most compelling testimony to the NLRB about Smithfield's conduct came from a line worker active in management's campaign against workers' self-organization and from a supervisor who fired a union supporter.
Sanitation department employee Latasha Peterson testified that shortly before the August 1997 election she was recruited by managers to distribute anti-union material during work time and to report employees' reactions, noting those who spoke favorably of the union. Training in how to campaign against workersorganizational efforts, and report-back meetings, took place while Peterson was "on the clock;" that is, supposed to be working.223
Peterson testified that she attended training sessions with company lawyers and consultants. Key workers in the company's campaign against workers' organizing efforts were called "the A-Team." Peterson said she also attended the company's captive-audience meetings where management warned workers of dire consequences of organizing and collective bargaining. Management stressed the company's right to take away pay and benefits in bargaining and to permanently replace workers if the union "pulled them out" on strike. Management also showed a series of anti-union videos.224
Following these meetings, "A-Team" members, as instructed by the company's consultants, engaged co-workers in conversations about the meetings and videos and made lists of workers and their reactions. They handed these lists to company personnel officials. Peterson said that she received overtime pay while working on management's campaign that amounted to double her normal weekly pay.225
Sherry Buffkin was a supervisor in Smithfield's laundry department during the 1997 election. She testified that company officials and consultants instructed her to probe the union sentiments of employees under her and report her findings to management.226 Buffkin said supervisors were also told 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."227 As for overtime opportunity, a benefit often desired by many employees to supplement their regular wages, Buffkin said "overtime was subjective to the supervisor to allow the peoplewho were pro-company at this time. There was always overtime but it was given to employees who were active in the company stance."228 Conversely, said Buffkin, pro-union employees who usually declined overtime because of family needs "were instructed to work overtime."229 Buffkin said top company officials and lawyers told supervisors to use these tactics.
Buffkin's account of what happened to Margo McMillan is a stark example of interference with workers' rights. McMillan, a laundry room attendant under Buffkin's supervision, was fired in 1997. According to Buffkin, 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.'"230 According to Buffkin'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. . . ."231
Smithfield Foods president Joseph Luter testified that he considered the NLRB and the union "one and the same" and that he considered NLRB complaints "to be a matter of-to be frivolous, outrageous." Luter said, "I do not know of one business person in this country that thinks that the NLRB is impartial and neutral on these matters. Not one. We all believe, particularly in the business community, that the NLRB is certainly pro-labor. . . ."232 Luter did not respond to an August 1999 written request from Human Rights Watch to discuss the union organizing campaign and management's campaign against the union at the Tar Heel plant.
State and Local Authorities' Role
The 1997 union election campaign in Tar Heel involved not only abuses of workers' rights by management but also troubling actions by state and local authorities. Instead of fulfilling the affirmative responsibility of government authorities to protect workers' rights, state power was used to interfere with workers' freedom of association in violation of international human rights norms.
Smithfield's director of security, Daniel Priest, had been a local police officer and was still a deputy sheriff exercising police authority. Priest supervised a contingent of twenty-four full-time security guards at the Smithfield plant. In addition to the plant security force, local police officers were told to take instructions from Priest, who was authorized, in his words, to "handle all law enforcement type functions at the plant."233
According to union organizer Milton Jones, local police and sheriffs "turned up in force" during the pre-election campaign when union advocates attempted to distribute flyers to workers driving into the plant.234 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.235 "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."236 This worker asked not to be identified. There was no record of prior incidents justifying such a wide police involvement in the lead-up to the election, nor the palpable police presence during the voting process. In a departure from normal practice in an NLRB election, Smithfield management stationed security guards under instruction from company security chief Priest in the cafeteria where the 1997 voting took place.
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 representatives and workers who served as election observers for the union. Union organizers testified that the taunts included racial slurs (the main UFCW staff organizers and key shop floor organizing leaders were African-American). In testimony at the hearing before an administrative law judge, Smithfield president Joseph Luter characterized management conduct as rubbing "mud in their face, soto speak" and likened it to "during NFL football games where a player would taunt another player if they had a victory play."237
When final results were announced, the large management contingent, joined by security guards and by local police officers summoned by Priest, began pushing union supporters toward the door out of the cafeteria. In the confusion, police beat, maced, handcuffed and arrested Ray Shawn Ward, a worker active in the union campaign.238
Prisoners Working at Smithfield
North Carolina state officials were implicated in another element of the Smithfield case, involving prison inmates in a work-release program. According to union officials, approximately forty-five workers were bused into the plant each day from the Robeson Correctional Center, a state prison. They were bused into the plant premises without stopping to receive union flyers and boarded the bus at the same internal point so they could not receive flyers leaving the plant.
Smithfield management denied union advocates' request to communicate with these workers, who qualified as "employees" under the NLRA and were eligible to vote in the union election. However, management required these work-release employees to attend captive-audience meetings to hear its arguments against forming and joining a union.
On August 6, 1999 union representative Chad Young called the superintendent of the Robeson prison to request meetings with inmates working at the Smithfield plant. According to Young, the prison official said "no way . . . under no circumstances," and hung up the phone.239 The following day, a union attorney made a formal request to the Office of the Attorney General requesting permission to visit these workers in the prison to discuss the union organizing effort.240 Thestate attorney general's office did not respond to this request. The union was never able to communicate with the work-release employees.
Wilson, North Carolina: Same Company, Same Pattern
The experience of Smithfield Foods workers in North Carolina and their efforts to form and join a union do not begin and end in Tar Heel. Smithfield ships pork parts one hundred miles north to Wilson, North Carolina, where a Smithfield plant employs some 300 workers who produce bacon, sausages, hot dogs and other retail pork items.
Workers at this smaller Smithfield plant tried to form a UFCW local union in early and mid-1999. Many of the same tactics used in Tar Heel to thwart workers' organizing-firings, threats, interrogations, spying -were repeated in Wilson. Accounts by workers who spoke with Human Rights Watch were borne out by an NLRB investigation that produced a complaint in January 2000 detailing repeated unfair labor practices by Smithfield managers in Wilson:241
* threatening workers with plant closure if they voted in favor of collective bargaining;
* threatening stricter enforcement of disciplinary rules if workers supported a union;
* threatening that it would be futile to form and join a union;
* threatening loss of business and resulting loss of jobs if workers chose a union;
* interrogating workers about their organizing activities;
* spying on workers involved in organizing activity;
* prohibiting workers from discussing salaries with each other;
* firing five workers because of their support for forming and joining a union.
Recounting management's captive-audience meetings with workers, shipping department employee Robert Atkinson told Human Rights Watch, "It really hurt usthat the people only heard one side. It would be a lot fairer if the union could come in and talk to us. The company has a big advantage, making people come to meetings and showing videos. A lot of people don't come to union meetings. They're scared the company will know."242
As in Tar Heel, a large number of workers in Wilson were single mothers eligible for one or more government benefit programs-food stamps, child care subsidies, Medicaid. Workers interviewed by Human Rights Watch estimated the number of employees in this condition at 25-30 percent of the total, although an exact number is not ascertainable. Workers meeting with Human Rights Watch said that in the final days before the July 1999 election, company supervisors launched a targeted campaign to tell these workers that they would lose their benefits or never be eligible for government assistance again if the union came in and "pulled them out" on strike (the argument that a union "pulls out" workers is standard in management campaigns against workers' efforts to form and join a union, even though the UFCW's constitution, like those of most unions, requires a membership vote to authorize a strike). Wilson workers told Human Rights Watch that this tactic swayed many of the single mothers in the plant who need supplemental government benefits to make ends meet.243
Atkinson told Human Rights Watch that the plant manager called in workers one at a time to ask them what they thought about the union. "He asked me if I signed a card. I said yes but that I was going to vote against the union. I told him that because I wanted to keep my job."244 Another Wilson plant worker, Shaniqua Moore, said, "I did everything under the sun for the union." In a one-on-one meeting, she said, the plant manager asked her why she was "so angry" with the company and said he could "make things better" if she worked with him.245
In captive-audience meetings, said Atkinson, "I saw about seven different videos on how the union just takes your dues, goes on strike, gets into fights and stuff."246 Workers told Human Rights Watch that Wilson plant management used another common tactic in captive-audience meetings: separating active pro-union workers for a meeting apart from undecided coworkers to avoid disagreement with management's views.247
Latino Workers at Smithfield Plants
A separate set of issues in the union organizing campaigns in Tar Heel and Wilson arose from the sizeable presence of Latino workers in both plants. UFCW organizers estimated that 20 percent of the workers in the two plants were Latino. "We never asked, and we tried to tell them it didn't matter, but the truth is that most of them are probably undocumented," said union representative Jeff Greene.248 Both UFCW staff organizers and workers interviewed by Human Rights Watch said that reaching out to Latino workers in the plants was "practically impossible" despite union efforts to involve Spanish-speaking organizers and attorneys to help in the campaign. "They just want to keep their heads down and not get noticed," said Greene. "This is North Carolina; it's not southern California or New York City where they have some community support."249
Human Rights Watch was also unable to speak directly with Latino workers at either plant despite calls and assurances of anonymity. However, one person, a U.S. citizen who had married a Central American immigrant working in the Wilson plant, told Human Rights Watch that, according to his wife, management segregated Latino workers for captive-audience meetings conducted by Spanish-speaking consultants in the weeks before the Wilson election. Union representatives said the same consultants had appeared earlier in the Tar Heel election campaign, meeting separately in captive-audience sessions with the hundreds of Hispanic workers there.
According to the husband, these consultants told Latino workers that the union was dominated by black workers and that the organizing drive was really an effort by African-Americans-the majority of employees at the plant-to get rid of Latino workers and take all the jobs for black people. He said Latino workers were told "the union will see to it that you get fired because you don't have good papers" and that "the company will not bother you about your papers as long as you vote against the union."250
The problem of immigrant workers' status in union organizing drives was discussed in Human Rights Watch interviews with African-American workers at the Smithfield plant who were active in the union effort. They expressed frustration about a "bloc vote" against the union by Latino workers. Said one worker, "It's not fair that management can take them all aside and fill them up with lies about us andabout the union, and we don't know what they said and can't explain what we believe."251
Government Takes Sides
Local government partisanship against workers' self-organization emerged when the mayor of Wilson and two other city officials passed out leaflets before the vote urging workers to reject union representation. The city officials were invited by management onto company premises-access denied to union advocates-to pass out flyers against workers' organizing. The flyer detailed earlier closings of the plant and attributed them to union activity, suggesting that the same fate would befall Smithfield workers in Wilson if they chose union representation. The flyer said, "[H]istory paints a bleak picture . . . Are you willing to risk your job and your future for a group of paid organizers? . . . If the plant did close, where would you go to work? . . . Unemployment in Wilson County is 11%."252
As in Tar Heel, the application of government presence and power on the side of employers seeking to prevent workers' forming and joining a union violates international humans rights norms. The central obligation of government is to protect workers' right to choose, not to take sides on behalf of the employer, throwing the weight of the state to one side and destroying any semblance of balance.
A lack of respect-that's why we organized.
-A Detroit food worker telling Human Rights Watch researchers what prompted a failed organizing drive
Lodged alongside a small chemical plant in a residential area in northwest Detroit, the Cabana Potato Chips division of Jenkins Foods supplies snack food products, mainly potato chips, to a regional market under various brand names. The company has been in business for over forty years and employs 120 workers.
Nearly all the plant's workers are African-American, and a majority are women. Many live in the modest homes surrounding the plant and walk to work,recalling an earlier pattern of work and home life in this era of suburban industrial parks linked by interstate highways. Many workers do not own a car.
The starting wage at Cabana in late 1998 was $5.50 per hour, or $220 per week. Most workers in operator jobs earned between $6 and $7.25 per hour, $240-290 per week. A few workers in higher mechanical classifications made $9-10 per hour, up to $400 per week. If they wanted health insurance, it cost $38 per week for individual coverage and more than $80 per week for family coverage.253 Workers had no pension plan or other retirement benefit and no sick pay for days of illness.
Most workers were not directly employed by Cabana. Instead, they were employed as "temps"-even those with years of service at the plant-by a shifting series of temporary employment agencies. In recent years, for example, the temporary agency that supplied Cabana with workers changed its name successively from "Creative Staff" to "Crown Temps" to "Total Temp Connection" to "Simplified Temps" to "Future Force Services."254 Oddly, for an agency that was supposedly independent of Cabana, "Creative Staff" and its successors maintained a permanent office inside Cabana's plant.
With each change, workers were notified that they worked for the new agency from which they now received their paychecks. But over the years, they worked the same job under the same company management at Cabana. Some workers interviewed by Human Rights Watch had up to twelve years of work at Cabana. Because they were "temps," however, seniority did not count for much. They accrued no pension benefit. Workers reported that when some long-service Cabana employees sought to borrow money to purchase a car, the bank said they were ineligible for loans because they worked for a temporary agency.255 While the names changed, agency owners and staff continued operating from the office in the Cabana plant.
Workers interviewed by Human Rights Watch believe that the temp agency structure is meant to assure they will not be eligible for unemployment benefits in case of layoff. Either they would not attain a "base year" with one employer (a standard requirement for eligibility) or, as some attested happened to thempersonally, the temp agency would offer them a position in a far-off suburb, then deprive them of unemployment benefits because they refused a job offer.0
Among Cabana's 120 workers, a significant number were former welfare recipients in Michigan's "WorkFirst" mandatory welfare-to-work program. Human Rights Watch was not able to obtain a precise number of WorkFirst employees at Cabana. Interviewed workers characterized it as "a lot," but said that, on the job, it was a subject about which workers did not feel comfortable asking or telling one another. None of the workers interviewed indicated if he or she was in this category.1
The Organizing Drive
Cabana workers' move to exercise the right to freedom of association began with a spontaneous protest in September 1998, when the company failed to include Labor Day holiday pay in their paychecks. More than a dozen workers refused to leave the plant after their shift ended, going "upstairs" to demand holiday pay. They received payment for the holiday, but workers remained upset about this and other instances of what they perceived as arbitrary treatment by management, along with low wages, lack of benefits, health and safety problems, and what several workers in interviews with Human Rights Watch called "lack of respect" by management.
Cabana workers called Local 326 of the Bakery, Confectionary & Tobacco Workers union (BCT), which represents several thousand workers in food processing and related industries in Detroit and southeastern Michigan. In general, BCT collective bargaining agreements in other snack food companies provide wages substantially higher than those at Cabana, along with comprehensive medical, pension, vacation, holiday, and other benefits not enjoyed by Cabana workers.
Those Cabana workers most keenly interested in forming and joining a union began meeting with BCT local leaders Don Rogers and Mary Peterson, along with representatives of the national union and shop leaders from other BCT unions in the area. Workers told Human Rights Watch that "first we met secretly, then more out in the open," sometimes in their homes, sometimes at fast food outlets. Unionadherents in the shop talked about the union with coworkers and invited them to meetings with union representatives away from the plant. Union organizers made visits to workers' homes if they could locate their addresses and if the workers let them in. All these are typical steps for workers seeking to organize and bargain collectively with their employer.
One Cabana worker was fired by management when the campaign first began, but a charge filed with the NLRB resulted in a settlement of the charge and reinstatement. By mid-November 1998, eighty-four workers-70 percent of Cabana's hourly force-signed cards joining the BCT and authorizing the union to represent them in bargaining. BCT representatives and shop floor leaders personally informed management that the union represented a majority of Cabana workers and requested recognition and bargaining. Management refused.2 The workers then petitioned the NLRB to hold a secret-ballot election to determine the union's majority status.
The "Vote No" Campaign
The NLRB set an election date of January 14, 1999, about eight weeks after the petition was filed. On November 30, 1999, the union and company agreed with the NLRB on the composition of the bargaining unit and the workers eligible to vote, a total of 121 employees. The relationship between Cabana and Future Force, the temp agency at the time of election, did not delay the election in this case, as it could have had the employer chosen to make an issue of it. As NLRB regional director William C. Schaub, Jr. explained, "As both Jenkins Foods L.L.C. and Future Force Services Inc. signed an election agreement as Joint Employers, there were no novel issues or complications in setting up an election due to the involvement of a temporary employment agency."3
Cabana management immediately engaged three full-time consultants to direct a "vote no" campaign in the plant during the weeks before the election. According to workers interviewed by Human Rights Watch, the consultants developed a campaign with two main themes. One was the threat of closing the plant or "moving south" if a majority of workers voted for the union. A former Cabana supervisor told Human Rights Watch that the company owner and the owner'sdaughter, also a management official, repeated to the supervisor in separate conversations that they would "close the door" before dealing with a union.4
U.S. labor law prohibits open, direct threats to close a plant in retaliation for workers' choosing union representation. Such threats are considered a violation of Section 8(a)(1) of the NLRA, which says, "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."5 However, Section 8(c), the "employer free speech" clause adopted as part of the Taft-Hartley Act of 1947,6 has been interpreted by the courts to allow a "prediction" of plant closing if it is "carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control."7
This fine distinction in the law is not always apparent to workers or, indeed, to anyone seeking common-sense guidance on what is allowed or prohibited. Unfortunately for workers' rights, federal courts have tended to give wide leeway to employers to "predict" dire consequences if workers form and join a union.
One prediction a court found to be "carefully phrased" was made by the owner of an Illinois restaurant where workers sought to form a union and bargain collectively. In a tape-recorded speech in a captive-audience meeting the owner stated, "If the union exists at [the company], [the company] will fail. The cancer will eat us up and we will fall by the wayside . . . I am not making a threat. I am stating a fact. . . . I only know from my mind, from my pocketbook, how I stand on this." The NLRB found this statement unlawful. A federal appeals court reversed the board, finding the employer's statement a lawful prediction that did not interfere with, restrain, or coerce employees in the exercise of the right to freedom of association.8
At an Illinois auto parts plant where workers began organizing, a supervisor told workers, "I hope you guys are ready to pack up and move to Mexico." Again,the NLRB found that the statement was a plant closing threat. And again, the appeals court overturned the finding by the NLRB . The court said the statement was "a joke, not a threat,"9 apparently not noting the irony of federal judges with lifetime job security deciding what is funny to unprotected auto workers.10
Another key theme at Cabana was the threat of permanent replacement if workers exercised the right to strike. For example, a company letter to employees said:
In a strike employees:
1. Lose their wages.
2. Lose their company-paid benefits.
3. Cannot collect unemployment compensation.
4. Can be permanently replaced if the strike is for economic reasons (a strike over wages, benefits, or working conditions).
Question: Do you mean that non-strikers could be hired to take my job in an economic strike?
Answer: YES. Federal law gives the company the right to hire permanent replacements to continue to serve our customers.
Question: Isn't the company required to fire the replacements when the strike is over?
Answer: NO. The company is NOT required to fire the replacements by law. Strikers are only entitled to get their jobs back when and if openings occur.
Cabana management then reproduced a portion of the NLRB's Guide to Basic Law and Procedures underlining a sentence saying strikers can be replaced by their employer, then wrote below: "Remember! `But they can be replaced by their employer.'"11
Cabana management held a series of captive-audience meetings to fend off the organizing drive. According to workers interviewed by Human Rights Watch, leaders of the organizing effort and active supporters were segregated in one group. Management gave them a perfunctory reading of a script prepared by the consultants and sent them back to work. The larger group of workers, most of whom had signed union cards but were not union leaders and were fearful of management reprisals, were gathered separately for longer, more intensive sessions stressing plant closings and permanent strike replacements.12
The solid majority in favor of union representation wilted in the face of management's opposition campaign. The union lost the NLRB election 68-44. This result is not unusual. Most often, workers wait until two-thirds of eligible voters have signed union cards before seeking an election, because experience shows a predictable fall-off in support after management's campaign against the union. Employer representatives attribute the drop-off to workers' changed opinion after hearing the facts from management.
When asked why the union did not raise objections to the election or pursue unfair labor practice charges about arguably unlawful plant-closing threats and pressures on WorkFirst employees, BCT local union president Don Rogers explained, "We just don't have the resources or staff time to put into legal cases that take years to resolve. We need to spend our time organizing and bargaining and handling grievances and arbitrations. Sometimes we have to walk away and just try again later."13 Rogers added, "We would file for a worker who got fired. We wouldn't leave the worker hanging out there with no help."14
Rogers pointed to another common problem. "The workers are often scared to give affidavits or to testify. They figure they'll be on management's hit list if they do, that even if management doesn't fire them they'll get harassed or assigned to worse jobs or something else to make their lives miserable."15 Rogers's observationwas echoed by union representatives in other Human Rights Watch case studies-pointing up the personal courage it takes for workers to go public in complicated legal proceedings that require sworn statements and testimony against employers who control their economic fate.
Welfare-to-Work Employees
The results at Cabana may simply reflect the generalized fear among employees just noted, or in some cases a genuine change of opinion. But another feature of the Cabana campaign may also have played a part. Workers in the WorkFirst welfare-to-work program could lose their food stamps, medical insurance, child care subsidies or other benefits available from the state if they became active in the union and went on strike. The special vulnerability of WorkFirst employees to the loss of vitally important benefits like medical insurance for their children could be a decisive factor in an NLRB election.
Welfare reform and related "workfare" programs are subjects of intense policy debate in the United States. But workfare workers' freedom of association is often low on the agenda.16 In Michigan, a recipient of cash welfare assistance who joins a strike in the workplace ceases to be eligible for that cash assistance.17 "Cash assistance" refers to Temporary Assistance for Needy Families (TANF), which replaced the Aid to Families with Dependent Children (AFDC) program under the 1996 welfare reform. It is federal money given as block grants to the states.
If a welfare-to-work employee in Michigan is fired for involvement in or sympathy with an organizing effort, the situation is equally bleak. A state official told Human Rights Watch that, to his knowledge, the eligibility manual contains "nothing specific that speaks to union organizing," and a review of the eligibility manual confirms this.18 That is, if a welfare-to-work employee is in fact fired for organizing but the employer uses a pretext, such as incompetence, as the statedreason for discharge, the state has no mechanism in place to protect the welfare status and benefits of the employee.19
A Michigan state official indicated that the NLRB would be the avenue of recourse for a welfare-to-work employee who suffers discriminatory reprisals for organizing activity.20 But a favorable NLRB ruling several months or even years later does nothing to serve the immediate needs of the worker. According to the state official, a welfare-to-work employee losing a job under these circumstances is liable to lose benefits for one to two months before becoming eligible again.21 The firing also becomes part of her case history, which defines whether she has been deserving of assistance by genuinely seeking to get and to hold a job. In Michigan, if a person "fails to comply" with welfare requirements a second or third time, some benefits may be withdrawn for six months or more, while others may be reduced.22
Similar rules apply in most states under federal rules imposing sanctions on individuals for noncompliance with work requirements.23 States may create "good cause" exceptions for noncompliance with work requirements, including unjustified or unlawful discharge.24 However, the issue of whether an employer dismissed a worker unlawfully or not is precisely the issue litigated before the NLRB, often requiring many months or even years before a determination is made. In any event, workers are likely too fearful to exercise organizing rights at the risk of losing vital benefits.
The unique status and vulnerability of welfare-to-work employees are only beginning to interest trade unions and legislators. The states have considerablelatitude in determining eligibility for benefits, and obscure rules like those noted above are little known even to advocates and activists, let alone to workers who are directly affected by them. What welfare-to-work employees do know is that their lives are precarious, and as they enter the national workforce by tens and hundreds of thousands, their vulnerability becomes a factor in workplace dynamics when they and coworkers exercise rights of organizing and collective bargaining.25
Baltimore, Maryland Packaging Industry
Five years later I've got nothing to show for it.
-A worker fired for organizing
Another company in a similar urban factory setting, with low-wage workers exercising their right to freedom of association, offers an example of even harsher anti-organizing tactics. In the mid-1990s, a new company called Precision Thermoforming and Packaging, Inc. (PTP) employed more than 500 workers in a federal "empowerment zone" in a Baltimore, Maryland neighborhood called "Pigtown."
The company received indirect state subsidies worth millions of dollars through a low-cost lease of manufacturing space in a converted warehouse bought by the state in 1994. PTP also received a federal subsidy of $3,000 for each employee it hired who lived inside the empowerment zone. It hired more than 250 such workers. Thanks to subsidies, the federal government's empowerment zone designation is worth a lot of money to employers who set up operations in a zone. But the government does not use this financial leverage for conditioning empowerment zone benefits on fair treatment of workers.
PTP ran a plastic packaging and shipping operation for flashlights, batteries, and computer diskettes. Major customers included Eveready Battery and America Online (AOL). AOL shipped millions of free diskettes to consumers from the PTP plant.
PTP's starting wage was $5 per hour. Most workers after passing probation and staying with the company could get incremental raises to $5.25-7.00 per hour. Health insurance cost employees $36 per week from their paychecks-a benefit most of them declined, since they made only $200-$280 per week. There was no pension plan.
In mid-1995, a group of PTP workers began an effort to form and join a union in the United Electrical, Radio and Machine Workers of America (UE). The UE represented employees at other Baltimore-area manufacturing plants with better wages and benefits. The UE also had a reputation for democracy and rank-and-file involvement that attracted PTP workers. A leader in the PTP campaign, Gilbert Gardner, had worked in a UE plant years earlier and had been active as a union steward. "I remember the UE was real democratic and close to the people," said Gardner. "When I saw how things were going at PTP, I called the UE for help."26
Abuses by Management
A complaint issued by the NLRB finding merit in unfair labor practice charges filed by the union tells what happened next.27 PTP management fired Gilbert Gardner and eight other workers active in the union organizing effort. In addition to the firings, PTP managers and supervisors:
* threatened to close the plant if a majority of workers voted in favor of union representation;
* threatened to move work to Mexico;
* threatened to move the AOL production line to another country;
* threatened that Eveready Battery would pull its business from PTP;
* threatened to fire workers who attended union meetings;
* threatened to fire anyone who joined the union;
* threatened to replace American workers with foreigners if the union came in;
* threatened to transfer workers to dirtier, lower-paying jobs if they supported the union;
* told workers not to take union flyers from union organizers;
* told workers upper management was going to "get them" for supporting the union;
* asked employees to report to management on the activities of union supporters;
* stationed managers and security guards with walkie-talkies to spy on union handbilling and report on workers who accepted flyers;
* interrogated workers about their union sympathies and activities;
* denied wage increases and promotions to workers who supported the union.
"I'd say I was the one who got the union going," said Gardner, who began working at PTP in April 1993. "Then they fired me the day after I went to a hearing at the NLRB to set up the election," he told Human Rights Watch interviewers. "Earlier they wrote me up for smoking during working hours, which I did ever since I started. I would step outside when I caught up with my work to have a smoke with my supervisors. They never said anything about it until I started supporting the union."28
As for his firing, Gardner explained, "On the day after the hearing they demoted me from shipping to production associate, with a fifty-cent cut in pay. When I said I thought it was because of my union work, they fired me for threatening a supervisor."29 When he was fired, Gardner made $6.25 per hour; management wanted to cut his pay to $5.75.
Union supporters lost the NLRB election by a vote of 226-168. Before the vote, 60 percent of the workers signed union cards to join the UE and authorize the union to represent them in collective bargaining.
The Immigrant Factor
Approximately 25 percent of the hourly workforce at PTP was composed of Vietnamese immigrant workers placed with the company by a social servicesagency in Silver Spring, Maryland, a suburb of Washington, D.C. thirty miles from Baltimore. Most of these workers were bused to the PTP plant each day.
"PTP has been a constant customer," Phu Le, a director of the agency, told a reporter. "They like having a lot of refugees, especially Asian."30 Le's agency received $1400 from the U.S. Department of Health and Human Services for each Vietnamese immigrant placed at PTP. He placed nearly 150 people there in 1995.31
"We have come out of hell," said PTP worker Thi Nguyen, "so we are pleased with anything at all." Nguyen, his wife, and four adult children were placed at PTP by Le's agency in September 1995 while the union organizing effort was underway, just eighteen days after they had arrived in the United States. "It is important to work and not complain," Nguyen told a reporter.32
Accompanied by Gilbert Gardner, a Vietnamese-speaking union representative tried to visit Vietnamese workers in the suburban Washington apartment where they lived. According to Gardner, "None of them would let us in to talk to them. They were too scared. They didn't want to get in trouble with the company."33
Gilbert Gardner told Human Rights Watch that PTP management held separate captive-audience meetings for Vietnamese workers. On the afternoon before the election, the union held a rally at the plant gate for workers leaving the day shift and arriving on second shift. According to Gardner, managers told Vietnamese workers that African-American union supporters were "rioting" at the entrance, and made Vietnamese workers board their bus in the rear of the plant to leave through a rear gate where they could not see the union rally.34
Aftermath: Justice Delayed and Denied
UE's charges of massive unfair labor practices by PTP were upheld by the NLRB's regional director, who issued a wide-ranging complaint on management conduct described above. Company president William Hartley wrote a letter to the mayor of Baltimore complaining that "PTP is an employer who invested millionsof dollars in the empowerment zone, only to find itself subjected to a slanderous campaign by a renegade union aided by public officials."35
The NLRB found PTP's conduct so egregious that the regional director announced he would seek a Gissel bargaining order, an unusual remedy in U.S. labor law based on a 1969 Supreme Court decision.36 Under the Gissel doctrine, a union that has obtained majority support from workers who sign cards joining the union and seeking bargaining can be certified as the bargaining agent even if it loses an election. The Gissel remedy is available when an employer's unfair labor practices have made the holding of a fair election unlikely or have undermined a union's majority and caused an election to be set aside. Many workers' organizing efforts match these conditions. However, an employer who resists a Gissel order can obtain years of delay by appealing the order to federal courts.
The Supreme Court in Gissel said that the bargaining order remedy is not limited to "exceptional" cases marked by "outrageous" and "pervasive" unfair labor practices. The court said that a bargaining order can also be applied "in less extraordinary cases marked by less pervasive practices which nonetheless still have the tendency to undermine majority strength and impede the election process." However, in practice, the NLRB and the federal courts have applied the Gissel remedy sparingly, effectively undermining the right of many workers to bargain collectively.
The NLRB also sought reinstatement and back pay ranging from $6,000 to $21,000 for workers fired for union activity, with Gilbert Gardner due to receive the highest amount. In March 1997, however, PTP shut its Baltimore plant and declared bankruptcy, citing a legal dispute with America On Line and AOL's failure to pay $2 million in accounts receivable. AOL countercharged that PTP committed postal fraud and overcharged AOL for mailing expenses.37 With no employer to order to bargain with the UE, the NLRB fashioned a settlement of the unfair labor practice case before it went to hearing. Under the settlement, PTP acknowledged the actions outlined in the complaint, promised not to repeat them, and promised back pay to the fired workers in the amounts sought by the NLRB.
Since then, Gilbert Gardner and the other fired PTP workers have waited in vain to receive the first penny of back pay for their unlawful firings. "What kindof a system is this?", Gardner asks. "PTP got millions of dollars from the government. They fired me and the other strong union people. They scared other people into voting against the union. They settle a case promising to pay me $20,000. And five years later I've got nothing to show for it." 38
With PTP out of business, Gilbert Gardner's first concern now is the back pay that is due him. The Gissel remedy is meaningless with no employer for Gardner and his coworkers to bargain with. However, had the NLRB been empowered to act quickly to initiate bargaining, workers might have been able to negotiate over severance pay, continued medical insurance, and other conditions in a bankruptcy-related closing, or indeed to offer steps to avoid closing.
Northbrook, Illinois Telecommunications Castings
When we won the election we thought, "Finally we can start making things better."
-A worker with no contract and no union, twelve years after winning an NLRB election
In the flush of an NLRB election victory, workers' hopes are high for a rapid move to the bargaining table to tackle the issues that gave rise to organizing. Some employers honor workers' choice and join a good-faith bargaining effort to solve problems in ways that meet workers' needs while respecting the needs of the business. However, other employers view workers' election victories as just temporary setbacks in a long-term campaign to rid themselves of unions. A governmental commission found that only about one-third of workers' unions are able to achieve a first collective bargaining agreement after winning an NLRB election.39
Under the NLRA, refusal to bargain in good faith is an unfair labor practice.40 But as discussed earlier, good-faith bargaining does not require agreement to any proposal from a bargaining counterpart. Instead, the obligation simply requires meeting at reasonable intervals and exchanging proposals with "a sincere desire to reach an agreement."41 By appearing to do so, employers can avoid a finding by the NLRB or the courts of bad-faith bargaining. If they slip up, the remedy ismerely an order to return to the bargaining table, where the cycle can repeat itself at little cost to the employer, who now knows from their decisions what the NLRB and the courts are looking for to indicate sincerity in bargaining.
What Happened at Acme
The bargaining history at one facility in suburban Chicago illustrates how delays and loopholes in the law can be exploited to punish workers for choosing representation and to avoid giving them the satisfaction of a collective agreement. Acme Die Casting, a division of Lovejoy Industries, makes a variety of small aluminum and zinc castings, mainly for the telecommunications industry.
Jorge "Nico" Valenzuela is still working at the suburban Chicago company, where he began in 1977. In October 1987, Valenzuela and coworkers Tony Aguilera, Arturo Ramirez and other Acme employees, most of them immigrants in Chicago's large Mexican-American community, voted in favor of representation by the United Electrical Workers union (UE). "We lost another election with a different union earlier," Valenzuela explained, "when the company promised to make things better. At first I didn't want to get involved again. But the UE seemed more democratic; it involved more workers in the leadership."42 The company employed about 120 workers in 1987, when an NLRB election was held at the plant. Workers voted 69-39 in favor of union representation.
A natural leader, Nico Valenzuela became the head of the organizing committee and then the president of the shop union in 1987. Antonio Ramirez and Tony Aguilera also became leaders. "When we won the election we thought, `Finally we can start making things better.' We elected a negotiating committee and asked management to start bargaining, " said Valenzuela. He and the other Acme workers did not know that years would go by before any bargaining would begin and that, when it did, bargaining would be futile.
After the election, the company filed objections to the election so unfounded that the NLRB dismissed them without a hearing. But Acme refused to accept the decision, leading the union to file refusal-to-bargain charges and a new round of labor board and court proceedings. While the NLRB and the courts pondered Acme's claims, workers tried to maintain their organizational activity. They mounted community support campaigns in Chicago's labor and Latino communities and traveled to Washington, D.C. to meet with members of Congress and NLRB officials.
In a letter-writing campaign to the NLRB, one Acme worker said, "We expected that after the election we would negotiate with the company and it wouldbe all over. But we have received so many humiliations." Another wrote, "We won the election. We want our contract. We can't take the company's abuses any longer." A third wrote, "I don't think it's fair, this country being a free country where everybody has rights."43
Acme management launched a campaign of reprisals after the NLRB election. The vote took place on a Friday; on the following Monday, the company issued new rules reversing longstanding practices. For example, management told workers to ask permission to use the bathroom and stopped allowing coffee and soft drinks in work areas. The company cut off access to microwave ovens during lunch time. A wash-up period was eliminated. Under the new rules, management began issuing warning notices and suspensions.44
Valenzuela, the leader of the organizing drive and of the workers' negotiating committee, was a skilled mechanic popular throughout the plant. His job took him to all parts of the facility keeping machinery operating. After the election, management assigned him to a rote grinding job isolated from other workers and far below his skill level. This took him out of circulation among coworkers and served as a constant reminder that support for the union carried serious consequences. Since his pay was not cut, the NLRB did not treat the move as discrimination, saying management has the right to assign work.45
After workers voted for representation, management halted salary increases for over a year. A judge found that, while refusing to bargain with the union, the company president told a group of workers who requested a pay increase, "I told you guys not to bother with the union because that was going to happen, no raises . . . You want the union, go to the union."46 However, when a smaller group of workers promising to decertify the union asked for pay increases, they were granted raises within two weeks. The administrative law judge who heard the evidence found that Acme's president fraudulently backdated a letter authorizing the payincreases to a date prior to the meeting with anti-union workers to make it appear that the decision was not motivated by bias against pro-union workers.47
Ten Years of Appeals and Fruitless Bargaining
In 1998, eleven years after the election, Acme ran out of appeals and had to pay $900,000 in cumulative back pay to workers unlawfully denied their pay increases.48 But the back-pay case involved discriminatory retaliation against workers for forming and joining a union. It did not address the collective bargaining process. Negotiations had been going on intermittently since 1990 when the company exhausted appeals in the earlier refusal-to-bargain case.49
In negotiations after 1990, Acme was again found guilty of refusal to bargain in good faith. The company subcontracted work without either notifying the union or bargaining, a move the administrative law judge called "an example of subcontracting during negotiations over an initial contract by an employer who spent years trying to avoid any obligation to bargain at all."50 Acme gave "merit" increases to certain high-paid employees who opposed the union while refusing to bargain on general salary increases with the union, which was seeking to improve the status of lower-paid workers.
To the company's argument that a bargaining "impasse" permitted such moves, the judge ruled that "the Respondent [Acme] has been guilty of repeated violations of Section 8(a)(5) of the Act going back to 1987 . . . In light of this history, it cannot claim benefit of any impasse in bargaining since its own intransigent and illegal behavior . . . would have contributed to any stalemate." The judge concluded that the company's violations "are repeated and pervasive and evidence on its part an attitude of total disregard for its statutory obligations."51
In an April 1993 decision, the administrative law judge ordered Acme to "cease and desist" from refusing to bargain and to return to the table and bargain in good faith. The NLRB upheld the judge's decision in September 1994. Thus admonished, Acme management shifted to a strategy of appearing to bargain by making proposals and counterproposals to the workers on minor subjects. However,the company "made demands they knew would be suicidal for the union" in other areas, said UE representative Terry Davis. Acme proposed small wage increases and demanded enormous hikes in employee payments for health insurance that would far exceed any pay increase.52 However, a careful employer can nearly always couch such demands as "hard bargaining," which is legal, as long as it makes proposals and counterproposals in other areas.
Bargaining went nowhere. In 1996, nearly a decade after he played a key role in helping coworkers win their election and serving on the workers' bargaining committee, Antonio Ramirez died. The loss of Ramirez's leadership was compounded, said Davis, when management took advantage of the supervisory exclusion in the NLRA to entice several activists from the bargaining unit by making them supervisors and giving them pay raises. Union chief steward Tony Aguilera was one unionist tapped for a supervisor's post.53
In March 1999, the UE sent a letter to Acme and to the NLRB disclaiming representation rights. Under NLRB rules, a certified union may inform the board in writing that it relinquishes representation.54 Although rarely invoked, this step is the only one left to unions that have exhausted all possibilities of achieving a collective agreement even after the application of labor law remedies against prior unfair labor practices by employers. "At this rate," said union negotiator Davis, "the company would still have deal-killers on the table twenty-five years from now."55
A Manager Speaks
A top Acme official, while denying a request for an interview at the plant, told Human Rights Watch "[W]e worked long and hard for years to convince our employees that they're better off with us than with a union. The union did nothing but lie about us. People now believe they're better off with us than with a union."56
These were years when, under the law, the company was supposed to be bargaining in good faith with the workers with a sincere desire to reach an agreement. The manager's statement to Human Rights Watch shows how far fromsincere the company's bargaining was. Yet in the end, its methods prevailed against workers' right to bargain collectively. Acme outlasted the life of one organizer and the endurance of others, and the legal structure supposed to protect workers' rights proved no impediment to these tactics.
The Acme Die Casting case is a dramatic example of profound weakness in U.S. labor law and its inability to deal with a determinedly intransigent employer intent for over a decade on denying workers' right to bargain collectively. Over thi