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.
Service Sector Workers
South Florida Nursing Homes
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
Food Processing Workers
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.
Detroit, Michigan Snack Foods
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.
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 this time, authorities repeatedly found the employer guilty of interference, restraint, coercion, discrimination, and bargaining in bad faith; that is, without a sincere desire to reach an agreement. But the only remedy was an order to cease and desist such conduct. In effect, by repeated findings of unlawful behavior with no punitive remedies, the NLRB and the courts simply gave the employer a road map to minimally lawful-appearing conduct. In fact, as the Acme manager's statement makes clear, the company harbored no desire to reach an agreement. Instead, it acted to "convince" employees to abandon the union at the same time the company was supposed to be bargaining in good faith.
New Orleans, Louisiana Shipbuilding
[Y]ou better make sure these whiners, malcontents and slackers don't even come close to winning this election.
-Company president in a captive-audience meeting before a 1993 NLRB election
Seen from the Huey P. Long Memorial Bridge just up the Mississippi River from New Orleans, the cranes, drydocks and hulls of ships being built at the Avondale Industries, Inc. shipyard rise from the flat riverside plain like giant stalagmites. With more than 6,000 workers, Avondale Industries is Louisiana's largest private sector employer. It is also the site of one of the largest workers' organizing efforts in the United States during the 1990s.
Up close, sounds of surging motors and clanging metal envelop workers who build and repair ships for the U.S. Navy. The Navy is Avondale's biggest single customer, accounting for more than three-quarters of its business-$3 billion in Navy contract awards in the past decade. Avondale also makes oil tankers for petroleum firms. It is seeking to expand its base of private commercial customers, including cruise ship companies.
In August 1999, Avondale Industries was purchased by California-based Litton Industries. Along with Avondale assets, though, Litton inherited a longstanding labor dispute rife with a decade's worth of workers' rights violations.
"We didn't get a raise for almost ten years. The pension was a joke. People were getting hurt and killed. There was a lot of discrimination. The foremen treated you like dirt. We needed respect. We needed a union bad," said machinist Joseph Johnson, a leader in the movement to form a union at the yard in 1993. He had also been active in earlier unsuccessful organizing tries. When Johnson retired in 1996, after nearly thirty years of service at Avondale, his monthly pension was $270.57
In 1993, Johnson and others among the nearly 4,000 hourly paid Avondale workers launched an effort to form and join a union in the Metal Trades Council of the AFL-CIO.58 The council represents workers at many large U.S. shipyards, gathering the specialized crafts of welders, pipefitters, machinists, electricians, painters and others to bargain collectively with shipbuilding employers. The union represents more than 10,000 workers at Litton Industries' Ingalls shipyard in Pascagoula, Mississippi, along the Gulf Coast some 200 miles east of New Orleans.
Avondale management unleashed a massive campaign to deter the workers' organizing effort. "They called in each craft to talk down the union" in captive-audience meetings, said sheet metal worker Bruce Lightall, who has worked at the plant since 1979. "They told us they'd shut the door if the union came in, that we'd lose Navy contracts."59
In a speech to assembled Avondale workers at a captive-audience meeting before the 1993 election, company president Albert L. Bossier, Jr. said:
You know, those of you who are for Avondale already understand how serious this is. Those of you who are undecided need to think, and really think, about what this union is doing to Avondale . . . [T]hey want their dues money and if they don't get it they don't give a damn what happens to Avondale. Now those of you who are for this union I can only conclude that you hate this company so much that you don't give a damn if the Union takes action to destroy us . . . If you really want to destroy Avondale you oughtta go and support and vote for the damn union. You know, those of you who don't want to destroy Avondale, you better makesure these whiners, malcontents and slackers don't even come close to winning this election . . . Secure your future by rejecting this union and its bosses.60
The findings of an NLRB administrative law judge provide a more systematic description of Avondale management's violations of workers' freedom of association. The judge issued his 700-page decision in February 1998 after an unfair labor practice hearing that lasted from July 1994 to July 1996. The hearing required 165 days of hearings and resulted in a hearing transcript thousands of pages long.61 The judge found that Avondale management:
* applied stricter enforcement of work rules against union supporters than against union opponents;
* transferred union supporters to more difficult and dirtier jobs;
* threatened to withhold wage increases if a majority of workers voted for the union;
* threatened to close the yard if a majority of workers voted for the union;
* interrogated and spied on union supporters;
* threatened to fire union supporters;
* fired twenty-eight union supporters.
These labor rights violations took place in a one-year period before and after the June 1993 NLRB election at Avondale. Years of legal proceedings followed the workers' election victory. In his 1998 decision, the judge ordered Avondale to reinstate fired workers and to pledge not to repeat the unlawful conduct.62 Avondale did not comply with this order, and the cases remain on appeal.
The administrative law judge characterized Avondale's behavior as "egregious misconduct, demonstrating a general disregard for employees' fundamental rights." In these extreme circumstances, he ordered the extraordinary remedy of having company president Bossier read the NLRB's remedial notice to assembled employees (or, if Bossier refused, to be present while a board agent read the notice).63 This remedy, too, was never implemented.
Defying the NLRB
In June 1993, despite management's tactics, a majority of Avondale workers voted in favor of bargaining collectively with the company. The original vote count was 1,804 favoring representation by the Metal Trades Council of the AFL-CIO, and 1,263 opposed to representation. After adjusting for challenged ballots, the union ultimately prevailed 1,950 to 1,632. Avondale management refused to accept the results and began a series of appeals to the NLRB. In April 1997-nearly four years after the election-the NLRB certified the results and ordered Avondale to bargain with the union. The company still refused, appealing the board's order to the federal courts.
Frank Johnson, an Avondale machinist with twenty-five years in the yard, told Human Rights Watch in May 1999, "After the election I thought we'd sit down after a week or so and start bargaining. Now it's six years later, and we're still waiting."64 Echoing Johnson, Bruce Lightall said, "I thought we'd sit down after the election and negotiate a contract like reasonable people, to get some justice, respect, dignity. In time I found out how the law doesn't work for workers. It just helps the companies. They can appeal forever."65 Pipefitter Harry Thompson, another leader of the organizing drive who has since retired from Avondale, put it even more bluntly, "The law stinks."66
In the separate unfair labor practice case involving threats, discrimination, and firings of twenty-eight workers, Avondale appealed the administrative law judge's 1998 decision to the NLRB in Washington. In the meantime, another massive unfair labor practice case labeled "Avondale II" has begun, consolidating NLRB complaints upholding union charges of a new round of threats, coercion, discrimination, firings of union supporters and other unlawful conduct by Avondale management taking place between 1994 and 1998. Several of these cases involve acts of retaliation against the union's health and safety activists and their efforts to publicize and halt the company's failure to obey occupational health and safety laws. Between 1990 and 1997, seven workers were killed in accidents at the Avondale yard, more than any other major shipyard in the country.67
On November 10, 1999 the NLRB upheld virtually all of the findings and orders of the administrative law judge in the "Avondale I" unfair labor practice case. The NLRB cited "the quantity and severity of the unfair labor practices committed" by Avondale and supported most of the judge's extraordinary remedies. However, the NLRB only required a senior company manager, not necessarily Albert Bossier, Jr.-now the ex-president of Avondale-to read the NLRB's order to assembled workers.68 Avondale appealed the order.
A Fired Worker Speaks
A sandblaster and spray painter at the yard since beginning work in 1985, Donald Varnado is a worker fired in April 1993 who is still waiting for a final ruling in the "Avondale I" case. With the case now pending before a federal court in Washington, Varnado will have to wait years more.
"I was an activator, a supporter. I went to union meetings and talked to the guys. We needed more of a voice, more respect. The foremen and supervisors were always watching me and the other union guys, just looking to get rid of us," Varnado told Human Rights Watch.69
The administrative law judge who heard the evidence ruled that Varnado was fired for his union activity, ordering him-like twenty-seven other workers-reinstated with back pay minus interim earnings. While waiting for finalaction, said Varnado, "It's been a struggle. I had one steady job in construction for a couple of years. The rest were on and off, contractor jobs with no benefits."
Like many precariously employed workers, Varnado had no health insurance during most of his years away from Avondale. "I had Avondale's family medical for $25 a week out of my pay, but I lost that coverage when they fired me," he explained. "Since then, I had a lot of medical expenses that I had to pay for me and my family."
"I hope I get some reward for all my suffering from Avondale," said Varnado. "But it's not about the money. It's about what the union can do for you to get some respect from the company."70
Government Subsidies Against Workers' Rights
During the years between the 1993 election and Litton Industries' acquisition of the company in 1999, the federal government effectively paid Avondale its legal expenses for violating workers' rights. The Department of the Navy reimbursed Avondale for more than $5 million in expenses for campaigning against workers' self-organization and resisting unfair labor practice charges. As Avondale's biggest customer, providing more than three-quarters of its business, the U.S. Navy has enormous influence over events at the company. "Why doesn't the U.S. government say 'You can't do this!'?" asked union supporter Bruce Lightall in an interview with Human Rights Watch.71
Responding to an inquiry from Human Rights Watch, a Navy representative explained, "The costs of legal services, including those associated with Avondale's NLRB and Court of Appeals litigation, are generally allowable as an indirect cost (as part of overhead rates) . . . Avondale's overhead costs for Fiscal Years 1993 through 1998 have included approximately $5.4 million for legal fees related to the labor dispute . . . [T]he total costs for legal services that may be reimbursed . . . have not yet been finally determined."72
This response did not address the underlying issue for human rights consideration. The federal government is supposed to be a guarantor of rights protection. It cannot weigh in on the side of a rights violator without becoming itself complicit in human rights abuses. Where the support involves public funds, the complicity is even more serious. Avondale worker Bruce Lightall put itsuccinctly, "We pay taxes. That's our money. They're making us pay to hang ourselves."73
Aftermath: Recognition from a New Employer
In July 1999, the United States Court of Appeals for the Fifth Circuit upheld Avondale's objections to the 1993 election, reversing the NLRB decision and ordering a new election.74 The appeals court overturned the election because the voter lists used in the election contained the first initial, middle initial, and last name of the employee, rather than the full first name, middle initial, and last name of the employee. No NLRB election had ever been overturned on such grounds before. The court called the board's conduct of the election "unthinking adoption of 'standard practice.'"75
In a tone of scorn for the union and the federal agency charged with upholding the law, the court's ruling stated that the NLRB and the union, "parroting the hearing officer's allocation of responsibility . . . attempted to saddle Avondale with the blame for any failure in voter identification."76 Just as astonishing in its one-sided view of the case, the court said full name voter lists should have been used because "electioneering was hostile and bitter," without any acknowledgment that the administrative law judge in the separate unfair labor practice case had already found Avondale guilty of massive threats, discrimination and firings in the period leading up to the election.
Despite this ruling, a rapid series of developments after the late 1999 sale of Avondale to Litton Industries brought the decade-long dispute over representation rights close to a conclusion. With a longstanding relationship with the Metal Trades Council at its other major shipbuilding locations, Litton agreed to a card-check method of certifying majority support for the union among Avondale workers.
Although the card-check agreement called for a one-year period in which the union could obtain cards signed by workers, a large majority signed cards within five weeks. A private arbitrator commissioned by the company and the union tocertify results confirmed the union's majority status. Collective bargaining finally began early in 2000.77
Avondale workers demonstrated patience and determination during a decade-long attempt to form and join a union to bargain collectively. Litton Industries deserves credit, too, for moving quickly to resolve the dispute by acknowledging workers' free choice rather than interfering with that choice. But the new developments are not all favorable for workers. While it is willing to bargain with the workers' union, Litton has launched an appeal against the NLRB's November 1999 ruling upholding the administrative law judge's order to reinstate all fired workers.
Agreement to recognize a union based on voluntary card-signing is still exceptional in U.S. labor law and practice. It took an extraordinary turn of events and a willing employer for workers to achieve a goal that government authorities had so far failed to afford. It seems clear that without the sale to Litton, Avondale workers would have gone far into the new century before they could effectively exercise their right to freedom of association. And still, twenty-eight workers including Donald Varnado, who suffered the ultimate workplace reprisal as long as eight years ago for exercising their right to freedom of association, have a long wait ahead.
New York City Apparel Shops
We didn't know what our rights were, so we just accepted it.
-Antonia Arellano, a sweatshop worker who organized . . . for two weeks
The resurgence of sweatshops in America reflects a "race to the bottom" on labor rights and labor standards more often attributed to export processing zones in Third World countries. For workers in the United States, as is often the case in Central American or East Asian sweatshops, freedom of association is the first casualty.
Researching violations of workers' freedom of association in U.S. sweatshops posed a sharp challenge. Workers trapped in the sweatshop system are so victimized in every aspect of their working lives that an open exercise of the right to organize and associate is an extraordinary event. Most sweatshop workers are so burdened by the need to make it through another day that forming a union is beyond their energies. Moreover, as Human Rights Watch found in other, non-sweatshop sector cases, immigrant workers' problems with authorization papers and fear of deportation also prevent efforts to organize in sweatshops.
Sweatshop workers turn to collective action as a last resort, usually when they realize that their employer has no intention of paying them even their subminimum wages for weeks of work already performed. Minimum wage violations, overtime pay violations, health and safety violations, sexual harassment and other problems in the garment industry are an accepted fact of working life, especially in the two largest urban regions in the country, New York and Los Angeles.
A 1994 report by the federal government's General Accounting Office found that sweatshops were widespread in the garment sector. The report noted declining resources for labor law enforcement by federal and state authorities and concluded, "In general, the description of today's sweatshops differs little from that at the turn of the century."78
One year after the release of that report, a shocking exposé of sweatshop labor in El Monte, California put a human face on the GAO's findings. Seventy-two workers from Thailand were discovered toiling in conditions akin to slavery. These workers were forced to work seventeen hours a day for seventy cents an hour. They had to eat and sleep where they worked, with ten workers in bedrooms built for two persons. Armed guards threatened to kill them if they tried to leave. They were not allowed to make unmonitored phone calls. Supervisors censored their letters home. They had to buy food and other necessities at inflated prices from their employer.79 American consumers had become aware of conditions in Central American and other foreign sweatshops following network television exposure.80 Now they saw similar conditions in their own front yard.
The Thai workers in El Monte made no attempt to form and join a union or to bargain collectively. Their concern was survival. In the same way, most sweatshop workers are afraid to complain about conditions or treatment. Because their work is underground and unauthorized, they accept exploitation in silence, fearful that filing complaints with labor law authorities or seeking to form and join a union will cost them their jobs and subject them to deportation.
Apparel manufacturing is a multibillion-dollar industry employing more than 700,000 workers in the United States. While most of them work in the formal sector of the economy for registered places of business, an unknown number-at least in the tens of thousands, and possibly more-work in an underground, off-the-books sector of the industry.
Nationally, there are fewer than 1,000 manufacturers serving a relative handful of well-known retail and private-label brand name companies, but more than 20,000 contractors and subcontractors, most of them small shops with fewer than thirty workers. It takes only a few thousand dollars to open a sewing shop consisting of little more than sewing machines and space rented by the month. It costs almost nothing to close one.
The garment sector is the biggest manufacturing industry in New York and Los Angeles, where in each region more than 100,000 workers labor in some 5,000 contracting and subcontracting sewing shops. Women who have recently migrated to the United States from Asia and Latin America are a significant majority of the workforce. These small shops compete fiercely for business from the manufacturers. Violating wage and hour laws is the quickest and easiest way to gain a competitive advantage, particularly when workers are not likely to complain or to organize for improvements.
U.S. Labor Department studies in 1997 and 1998 indicated that nearly two-thirds of garment industry shops in New York violate minimum wage and overtime laws.81 A comprehensive private study of the Los Angeles garment industry concluded in 1999 that "this important industry is plagued by substandard working conditions . . . There is widespread non-compliance with labor, health, and safety laws."82
Under current law, retailers and manufacturers who profit from sweatshops' race to the bottom on labor standards are not held responsible for labor law violations committed by contractors or subcontractors, including violations of workers' organizing rights. The large companies are insulated by the hierarchical structure of the industry and the reliance on one-job, quick-turnaround, unpredictable subcontracting arrangements that have largely displaced traditional longer-term, stable contracting relationships. One study of Los Angeles' 184 largest manufacturers found that they accounted for close to 3,000 overlapping sewingcontracts, providing an enormous amount of control, but no direct responsibility for conditions, in factories that provided them with contracted labor.83
Human Rights Watch examined two cases of sweatshop workers' organizing efforts in New York City:
In 1997 a group of workers at a mid-town Manhattan sewing shop called MK Collections formed a union in UNITE, the principal labor organization in the apparel industry. UNITE maintains two workers' rights and service centers in New York, one in Manhattan and one in Brooklyn, to assist both union and non-union workers with wage claims, workers' compensation claims, health and safety complaints and other work-related problems. The union also provides educational programs in English as a second language, skills training, immigration rights, and citizenship.
Mario Ramírez told Human Rights Watch that workers acted because they were owed seven weeks' pay for work performed and "because the owners screamed at people."84 He came to the UNITE workers' center to seek assistance. With the union's advice, Ramírez and a group of coworkers formed an organizing committee.
Eduardo Rodríguez, who like Ramírez came to New York from Puebla, Mexico, was another union adherent. "We would talk outside before work and at lunchtime, but never in big groups," he explained.85 Rodríguez estimated union support at about forty workers, a solid majority of the sixty-five to seventy people working at MK Collections.
In January 1997, MK workers brought their organizing effort to a head with a work stoppage demanding back pay for work performed. At first, their movement bore fruit. Seven members of the organizing group signed a handwritten agreement with the owner recognizing UNITE, setting a just cause standard for disciplinary action, promising to maintain clean bathrooms, and-besides paying wages on time-to pay an additional $50 per week until full back pay was reached for each worker.
The agreement held up for only four months. The employer fired two committee members, who did not want to protest because of immigration fears. Inearly May 1997, the company closed down, claiming that a manufacturer had canceled a production contract. According to Ramírez and Rodríguez, the owner reopened at a new location and hired a new workforce just weeks later.86
Their experience left its mark on Ramírez and Rodríguez. "I've thought about organizing in my new job," said Ramírez, who found other work in the garment industry. "But I need to be guaranteed that I won't be fired."87 Rodríguez, who took a new job in a restaurant, said, "As long as there is no law to protect us better, I don't think it is likely that I will organize again."88
According to UNITE representative Bertha Wilson, herself a former garment worker, employees from a Manhattan sewing shop called YPS came to the union-sponsored workers' center in 1997 because they were owed back wages, even though YPS subcontracted production for brand-name companies like Lord & Taylor, Ann Taylor, and Express.89 One of the workers, Antonia Arellano, told Human Rights Watch that workers were not being paid on time, that managers mistreated workers, that drinking fountains did not work, and that workers got no rest or lunch breaks. "We were aware that we were illegal," she said, "so we were kind of like slaves."90 She said that women workers were especially mistreated. "One of the managers would touch the women," she said. "If they complained they were fired. A few women were actually fired, and others just took it. We didn't know what our rights were, so we just accepted things. Some people said, `I'm just here to work, so I'll ignore the rest.'" With four to five weeks' back pay owing to workers, said Arellano, "The boss wanted to pay us with clothes. But how were we going to sell them for money?"91
In November 1997, YPS employees stopped work and demanded union recognition and four to six weeks of back pay. According to Bertha Wilson, the owner said he would recognize the union as long as the union did not contact Ann Taylor. In December, the owner signed an agreement calling for an end to sexual harassment, a forty-five-minute lunch break, and incremental back-pay disbursements each week.
The YPS agreement held up only for two weeks. The owner again halted back-pay disbursements, and employees stopped work. YPS shut its doors and went out of business. UNITE organized a workers' demonstration at the headquarters of brand-name companies that had contracted for work with YPS. Those companies agreed to make workers whole for lost wages, but by now workers had scattered to other locations. Many failed to collect their pay, fearing to come forward, said Wilson, because they were undocumented and were afraid of INS action.
Migrant Agricultural Workers
Washington State Apple Industry
You have thirty minutes to get back to work or you're all fired.
-An anti-union consultant to a group of striking farmworkers
The brown, treeless mountains framing the Yakima Valley of central Washington belie the rich soil below. Vineyards, hop fields, and orchards run uphill from the river as it cuts through the valley. This is the center of the states's multibillion-dollar agricultural industry and its crown jewels, the Fuji, Granny Smith, Golden and Red Delicious, and other apples filling fruit bowls in homes around the world.
Washington is the world's most prodigious grower of the popular fruit. Washington apples feed 60 percent of the domestic U.S. consumer market (New York state apples are second, far behind with 10 percent of the domestic market). Forty percent of Washington's apple crop goes overseas.
For more than 50,000 workers in the Washington apple industry, freedom of association is less bountiful. Workers who want to exercise rights to organize and bargain collectively to improve wages and conditions continue to be stymied by employer violations and by the government's failure to protect their rights.
Like all agricultural workers, Washington apple pickers are excluded from coverage by the National Labor Relations Act because they are not defined as "employees" meriting the law's protection.92 As noted above, the United States argued to the U.N. in its report on compliance with the International Covenant on Civil and Political Rights that this exclusion "means only that they do not have access to the specific provisions of the NLRA . . . for enforcing their rights to organize and bargain collectively."93 But farmworkers' lack of access toenforcement authorities leaves employers a free hand to threaten and to carry out reprisals against workers who seek to form and join a union to bargain collectively.
At high harvest, more than 40,000 pickers work in apple orchards in Washington. Although the Supreme Court of Washington has recognized the right of an agricultural worker to join a union, a worker who is fired for doing so must file a private lawsuit to vindicate the right.94 That is, a worker can seek redress only by getting a lawyer and bringing an expensive and risky private lawsuit. The employer will usually assert that the worker was fired for cause. Such a dispute has to be litigated in court.
Most farmworkers fired for organizing are not likely to take their cases to court. Many are migrants who speak no English. They have no money to pay lawyers. They have no time to find witnesses who can testify on their behalf or to prepare for examination and cross-examination in court to pursue their case. They usually have to look immediately for work elsewhere, or follow the harvest to the next crop.
Similarly, most private lawyers are not likely to take such cases. Finding witnesses is difficult. So is overcoming employer testimony about the worker's alleged misconduct, the usual pretext for a discriminatory discharge. The testimony of a confident, bilingual supervisor on the employer's behalf is more polished than that of a little-educated, frightened worker struggling to explain what happened through an interpreter. The possibility of punitive damages is small, so even if the case is won there is no payoff for the lawyer.
The costs associated with this, along with the fact that many of the workers are undocumented and want no brushes with the legal system, make the use of such lawsuits unrealistic. Employers know this. As a result, employers may violate apple workers' right to freedom of association with effective impunity.
The 15,000 workers in the "sheds" sector of the industry who sort, pack and ship apples are covered by the NLRA. However, they have encountered serious violations of their right to freedom of association by employers and consultants exploiting weaknesses in the law and ineffectual remedies for violations. The shed sector was once highly unionized, but strikes broken by replacement workers and closures of facilities where workers had chosen union representation effectively ended collective bargaining by the 1970s.
Many apple workers are employed year-round. In the orchards, they tend older trees and plant new trees. In the sheds, they sort and store apples in temperature-controlled areas and ship them to wholesale and retail outlets in the United States and to overseas markets. Most of these year-round workers havesettled permanently in the area. Increasingly, seasonal apple workers are also settling in the area and working on other crops that come to harvest at different times, like cherries and asparagus.
In the past two decades the demographics in the Washington apple industry, like those of many other regions and industries throughout the United States, have shifted from a labor force made up mostly of U.S.-born citizens to one heavily populated by immigrants. A majority of workers now employed in the Washington apple industry-all the orchard workers, in fact, and a majority of workers in sheds-are immigrants from Mexico. Many have been here for many years and are now citizens or hold legal work authorization. Many others are undocumented. Coincidentally, Mexico is the largest foreign customer for Washington State apples. According to an industry newspaper, "Mexico has become the core of the U.S. apple industry's export strategy."95
Many apple workers live in poverty, often in squalid company housing or, when growers fail to provide housing (which is not a requirement), on the banks of nearby streams. Low wages, intermittent work, dangerous pesticides, hazardous working conditions and inadequate medical attention make the lives of Washington apple industry workers precarious. Under optimal conditions, apple pickers told Human Rights Watch, they can earn up to $10 or $12 an hour in the orchards. But optimal conditions are not always present in the few weeks of harvest time each autumn. Workers often make closer to the minimum wage, with $6 or $7 per hour. In the sheds, the average salary is less than $15,000 per year. The average wage in the Yakima and Wenatchee areas, the centers of apple-growing activity, is 30 percent below the statewide average. Over 20 percent of the Yakima County population, and more than 30 percent of its children, live below the poverty level. The lack of housing for migrant workers reached scandalous proportions in 1999 when employers closed workers' barracks instead of complying with Department of Labor housing standards on such items as solid floors, enclosed areas for cooking and eating, refrigerators, stoves, lighting, and toilets. After the closures, thousands of workers lived in forests and on riverbanks in cars, tents and cardboard boxes.96
Overall, conditions here bear out the conclusions of a study prepared for the U.S. Department of Labor that found:
Most migrant farmworkers live a marginal existence, even after they stop migrating and settle in one location . . . The poor living and working conditions of migrant farmworkers are the result of farm labor practices that shift production costs to workers [and] reduce employer costs at the expense of worker earnings. As a result, migrant workers, their families and communities, rather than producers, tax-payers and consumers, bear the high costs of agriculture's endemic labor market instability.97
A high-ranking apple industry employer representative blamed migrant workers for not leaving the area after the harvest is done. "We do need people for a relatively short period of time. But when the apples are picked, they're picked." Asked whether this meant that farmworkers "should never be more than migrants, following harvests from Texas through California and Oregon to Washington," the growers' representative said, "Yes."98
Action under NAFTA
In 1998, conditions for workers in the Washington apple industry prompted one of the first complaints filed under the North American Agreement on Labor Cooperation (NAALC), the labor side agreement to NAFTA, involving workers' rights violations in the United States. Most earlier complaints filed under the 1993 agreement involved violations in Mexico.
The NAALC apple workers' submission was the broadest case filed under the NAALC, citing labor law violations and inadequate enforcement in areas encompassed in seven of the NAALC's eleven labor principles. Most earlier cases addressed only union organizing issues. The Washington apple industry complaint covered the right to organize, collective bargaining, minimum labor standards, non-discrimination in employment, job safety and health, workers' compensation, and migrant worker protection. The filing generated a burst of publicity calling attention to conditions of migrant workers and the opportunity for advocacy presented by the NAALC.99
Mexico accepted the Washington apple case for review in August 1998. In December 1998, Mexico held its first-ever hearing on a NAALC complaint. It was not a public hearing in the quasi-legal style of the United States and Canada in their handling of NAALC cases, but rather an "informative session" under Mexico's procedural guidelines conducted in private in a roundtable setting. A delegation of workers from packing sheds and orchards in Washington attended the hearing and presented direct testimony about pesticide poisoning, discharge for union activity, minimum wage violations, discrimination in the workers* compensation system, discrimination against migrant workers, and other violations of workers* rights.
The hearing provoked widespread publicity in the news media of both the United States and Mexico.100 In August 1999, Mexico's secretary of labor formally requested ministerial consultations with the U.S. secretary of labor in the apple workers' case. This development sparked a new round of publicity and related attention to the conditions of migrant workers in the industry.101 As this report goes to press, a program of conferences and workshops was being fashioned by the secretaries of labor of the two countries.
Apple Pickers: the Consequences of Organizing
Washington apple pickers interviewed by Human Rights Watch gave detailed accounts of violations when they tried to exercise rights to freedom of association, organizing, and collective bargaining to address poor conditions. As noted above, these workers are not protected by federal labor law prohibiting discrimination for union activity (see Chapter VI., Defenseless Workers: Exclusions in U.S. Labor Law for more discussion of workers excluded from organizing protection). Without resources to bring individual lawsuits against employers, they have no redress if they are fired, and growers can spurn any request to bargain collectively.
"I was a ranch foreman for a big apple grower," said Luis Castañeda, a young farmworker who began in the apple orchards in 1993. "I had about twenty guys under me. We were close. I tried to help them however I could, and they gave me good production."102 When workers at the ranch began contacting the United Farm Workers of America (UFW) in 1997 for help in organizing to improve wages and conditions, said Castañeda, his employer brought in a California-based consultant to train foremen and supervisors in combating workers' self-organization. "He told us to tell workers that growers in California plowed under the crops and left them with no work when the union came in," said Castañeda. "He told us to fire the leaders, that getting rid of the leaders would end the organizing."103
Management fired Castañeda himself for being too close to the workers, he said. Taking work as a picker at other ranches, he became active in farmworker efforts to form and join unions through the UFW. "I've been fired twice since 1997," he said, "when I signed up union members and we tried to get better wages."104
Rogelio Alvarez told a similar story. In several years of apple ranch work, "I was always speaking up for the people," he said. At one ranch, "the managers let it go until I started talking about the union. First they put me in a new job working by myself, where I couldn't talk to anybody. When they found out I was bringing people to UFW meetings, they fired me."105
"We need the union for job security, a grievance procedure, seniority, respect, not just for higher wages," said Arnulfo Ramírez, another long-time farmworker in the valley. "But when I say this, the foreman threatens me. He says there are twenty people waiting to take my job."106
José Godines reported suffering another kind of discrimination. The starting time at the orchard where he worked in 1994 was 7:00 AM. The manager told workers that those who came early would be assigned to easy, low-lying trees where they could quickly fill their bins. Godines protested. Family needs made it difficult for him to come early. He tried to organize coworkers to come at the regular starting time, with easy picking to rotate equitably. Management retaliated by assigning him to the highest, most difficult trees. Godines fell from a ladder and broke his arm. He missed the rest of the season and was not rehired the next year.107
Samuel Vallejo gave similar accounts. A Washington apple worker since 1983, he and coworkers protested a pay cut at one of the industry's largest ranches in 1993. When management learned that workers had contacted the UFW, Vallejo and three other leaders of the effort were fired. "The company spread my name around with other big companies not to get hired," he told Human Rights Watch.108
Intimidation of Striking Apple Pickers
José Nevare and his brother Vicente were involved in a widely publicized dispute at Auvil Fruit company, one of the largest apple growers in the state. Protesting the sudden firing of eight coworkers accused of bruising apples, 150 Auvil farmworkers stopped work on Labor Day in September 1997 and began picketing the entrance to the ranch. "The next day the company brought in the consultant that was telling them how to beat the union," said José Nevare.109
The consultant, California-based Stephen D. Highfill, specializes in telling agricultural employers how to defeat union organizing efforts.110 He directed employer campaigns against workers' efforts to form unions in Yakima and Wenatchee, Washington throughout late 1997 and early 1998. In a videotape made by workers during the strike at Auvil and reviewed by Human Rights Watch, Highfill, a large, burly man, approaches the workers, taps his wristwatch, and shouts in Spanish, "You have thirty minutes to get back to work or you're all fired."
Local and state police officials responded to the strike at Auvil with a show of force. Twenty-six police cars from three counties and the state highway patrol carrying heavily armed officers massed at the ranch entrance where workers were peacefully picketing. Officers with high-powered rifles flanked the workers in a military-style deployment. "Our picket was totally peaceful," said Vicente Nevare, "but they acted like we were criminals."111
A convoy of police cars escorted trucks and vans full of replacement workers sent by other growers to break the Auvil workers' strike. The strike ended after four days. Twenty-eight workers were fired, assigned to lower-paying jobs, or evicted from company housing.
UFW representative Guadalupe Gamboa protested the police action in a letter to the chief of the Washington State Patrol.112 The state rejected his protest. An official report by the Washington State Patrol characterized the strikers' parking their cars partially on the lightly traveled county road as "unlawful behavior" and said "the chanting and enthusiastic cheering from the strikers were perceived by law enforcement officials to be threatening in nature."113 On the videotape made by workers and reviewed by Human Rights Watch, workers chant "El pueblo unido jamás será vencido" (The people united will never be defeated) and "Sí se puede" (Yes, it can be done) enthusiastically, but with no words or action that could be even remotely construed as threatening.
The state report cites police perception of a "threat of violence should police attempt to arrest Gamboa for inciting riotous behavior among strikers" as grounds for armed intervention. "Based on their threat assessment," said the report, state troopers "should provide cover for the arresting officers from outer perimeter positions. They decided to carry their AR-15's while functioning as cover officers . . . at no time did the sergeants point their muzzles at anyone."114 At no time did the police move to arrest Gamboa, either, he told Human Rights Watch. In his view, the police never intended an arrest because, in fact, no violence occurred or was threatened. He saw the police action as one meant to intimidate workers exercising the right to freedom of association.115
Gamboa also pointed to the show of force when police vehicles escorted trucks and vans filled with strikebreakers past the Auvil workers' picket line. Any chance of peacefully persuading potential strikebreakers to respect the picket line was lost, he explained, in the face of such "blitzkrieg" tactics. The Washington State Patrol's report said troopers had "minimal involvement" in escorting strikebreakers past the picket line. "The allegation that WSP 'led a caravan of strikebreakers' is inaccurate," the report concluded. "Their actions were limited to providing back-up security as two WSP units trailed behind the convoy."116 The report was silent, however, on the role of local and county police who led the convoy.
Thousands of workers are employed in the warehouse or shed sector of the Washington apple industry. Many seasonal workers in the sheds are migrants from Mexico, and many year-round workers are resident Mexican and Mexican-Americans who have put down roots in the communities of the apple region. Many Anglo workers long resident in the region are also employed in the sheds.
Apple shed workers are not defined as agricultural workers. They are covered by the NLRA, which makes it an unfair labor practice to threaten, coerce, or discriminate against workers for union organizing activity. But when workers at two of the largest apple processing companies sought to form and join a union in 1997 and 1998, they suffered severe violations of the right to freedom of association.
As detailed in complaints issued by the NLRB and workers' and employers' testimony at the unfair labor practice hearings, management of Stemilt Bros. in Wenatchee and Washington Fruit Co. in Yakima responded to workers' organizing efforts with dismissals of key union leaders, threats that the INS would deport workers if they formed a union, threats to discharge and blacklist workers who supported the union, threats to close the plants if workers voted for union representation, and threats to permanently replace workers who exercised the right to strike.117
Here is how one worker described the company's tactics before a January 1998 NLRB election at Stemilt Bros. in Yakima:
I had to attend many anti-union meetings at Stemilt after we filed for a union election. At almost all of them, a consultant hired by the company [Stephen D. Highfill] was there [with various managers]. At the meetings they talked a lot about dues and strikes, but they talked the most about the INS . . . [Highfill] said the Union gets rid of undocumented workers so that it can keep their dues and get initiation fees from new workers. . . . I assume that the company keeps talking about INS because they know a lot of workers on the night shift are undocumented-I would guess at least half.
I myself started working at Stemilt as an undocumented worker in 1991. [In May 1994] I was advised that there was a problem with my papers and didn't return to work. Later, around August of 1994,someone told me that Stemilt was taking back those of us who had left work because of problems with our papers if we came back with new papers . . . I applied for work with a new name and social security number and was given work in the same department with the same supervisors.
When I started work again, I realized that many of the same people were working again, but with different names . . . The reason I bring this up is because it shows that before we started organizing Stemilt didn't mind if we didn't have papers. It is only now that we have started organizing that they have started looking for problems with people's papers, like they did with [names omitted]. And it is only now that they have started threatening us with INS raids . . . They know that we are afraid to even talk about this because we don't want to risk ourselves or anyone else losing their jobs or being deported, so it is a very powerful threat . . . The fact that . . . the consultant was always talking about how the union was going to cause the INS to come made many workers very afraid. I know this because many of the workers would talk to me about how afraid they were about what the consultant said.118
Not just workers' testimony, but also the testimony of consultant Stephen D. Highfill in the unfair labor practice hearing on these complaints paints a vivid picture of the management's tactics against workers' self-organization. Highfill said he held captive-audience meetings with hundreds of workers in groups of twenty to twenty-five at a time.119
Highfill testified that he and colleagues from his consulting firm told employees that there was an agreement between the U.S. Department of Labor and the INS that no raids would be conducted in a workplace where an NLRB election was pending, but that "the only time this accord applies is during the pre-election period" and as soon as the election was over "they're going to do their business as usual"-meaning the INS could conduct raids.120 Then they told workers that if the union won the election, the union would gain a $100 initiation fee from each new worker hired to replace a worker removed in a raid-"the only ones that appear tohave any monetary gain at all, are those who collected an initiation fee . . ."121 [i.e., the union].
In another tactic used in a captive-audience meeting, Highfill presented a Hispanic woman associated with his firm who claimed to be a former worker involved in a strike in Watsonville, California, some years earlier. According to Highfill, the woman "mentioned that after the strike that she'd been involved in, there had been a raid on that place . . . a full-blown raid . . . where they showed with the enforce (sic) and just took employees . . . grabbed people as they went in and out . . . a number of people were taken away who were new hires as well as some of the old hands."122
Highfill also testified that the same woman told workers that because of her union support she "had been blacklisted by area employers and she found it hard to get a job."123 Meanwhile, according to Highfill's testimony, a second Hispanic woman associated with Highfill's consulting group also claimed to have been a union activist in California "for over 20 years, and when she attempted to find work outside the place where she had been employed as a union employee, she felt that she was being blacklisted. . . ."124
On prospects for collective bargaining, Highfill testified that he told Stemilt workers in the same series of captive-audience meetings:
Very often, people have the idea that-that when you win an election, you-just right after that, you get a contract. But that the process itself can be a matter of just a couple of days or it can be months and sometimes years . . . the process can go on and on . . . And there are times, under those circumstances, when wages can be frozen and benefits can be frozen, you just never know . . . somebody asked if it went on forever and I remember we cited a company in-in California where it's been going on since '76. . . . We told them there have been circumstances under which-there have been times when wages were lowered . . . We told them that there have been occasions when people wound up making less than minimum wage.
Q. Did you give them some specific examples?
Just before the election, Highfill's consulting firm issued a flyer titled "An Important Piece of Advice" that said:
. . . none of the swindlers that the union has hired in this campaign has lived here before. They came here for only one thing-the money. If [Stemilt's owner] said that he could work with the union, it is because he could not say anything else under the law . . . remember that the growers are not wedded to Stemilt-they can put their fruit wherever they like if Stemilt had to charge them more . . . If the employers want the Teamsters like you want to be infected with AIDS, it is for the same reason-a possibly catastrophic result.125
In January 1998, although a majority of workers in each location had signed union cards, the Teamsters union lost NLRB elections at Stemilt and Washington Fruit. Stephen D. Highfill directed the employers' campaigns against workers' organizing attempts. The union filed unfair labor practice charges in both cases, and the NLRB regional office issued complaints detailing widespread violations of the law.
In Stemilt, the company agreed in August 1999 to settle the case and to accept the results of a card-check verification of worker sentiment in a process overseen by the judge. In October, the judge certified that a majority of Stemilt workers desired union representation, and bargaining had begun on a contract at Stemilt as this report goes to press.
Washington Fruit has refused similar settlement proposals by the union and the NLRB. The unfair labor practice hearing in that case concluded in November 1999, and the parties are awaiting the decision of the administrative law judge. His ruling can be appealed to the NLRB in Washington, and after that further appeals to federal courts are available.
North Carolina Farmworkers and the H-2A Program
H-2A workers are unlikely to complain about worker protection violations, fearing they will lose their jobs or will not be hired in the future.
-U.S. General Accounting Office, 1997
More than 10,000 workers in North Carolina's burgeoning agriculture industry hold H-2A visas legally authorizing them to work temporarily in the United States. But they share with undocumented migrant workers an acute fear of retaliation and deportation if they exercise the right to organize and bargain collectively. Reflecting other important aspects of freedom of association, the prospect of seeking legal counsel or taking legal action to vindicate their rights inspires similar fears.
This report focuses on workers' freedom of association. It does not dwell on conditions that give rise to workers' acting in association. But workers' exercise of freedom of association does not take place in a vacuum. Workers act in response to concrete needs and often harsh conditions. In North Carolina's fields, high heat, short pay, long hours, little drinking water, sparse toilet facilities, dilapidated housing, unsafe pesticides, and other realities of agricultural labor prompt a natural response of workers' coming together to make things better.126
Some North Carolina farmworkers seek to form and join a union. Some seek legal counsel to try to vindicate their rights through the courts. But they do so in the face of huge obstacles. From the time H-2A workers arrive in North Carolina, growers' association officials harangue them about dangerous "enemies:" union organizers and Legal Services attorneys devoted to farmworker rights advocacy. H-2A workers' standard employment contract with growers denies them basic rights of tenancy to receive visitors. The U.S. Department of Labor approves the ban, and local police enforce it.
H-2A workers in the United States have a special status among migrant farmworkers. They come to the United States openly and legally. They are covered by wage laws, workers' compensation, and other standards. They ought to have fewer problems, compared with undocumented migrant workers, exercising the right to freedom of association.
But valid papers are no guarantee of protection for H-2A migrant workers' freedom of association. As agricultural workers, they are not covered by the NLRA's anti-discrimination provision meant to protect the right to organize. If they try to form and join a union, the grower for whom they work can cancel their work contract, putting them "out of status" and liable to deportation. In effect, H-2A workers are caught in the antithesis of a free labor system, unable to exercise rights of association but also unable to move to another employer to seek better terms. This case demonstrates that any movement to strengthen workers' freedom of association in the United States will have to address the special problems of H-2A workers.
The H-2A program is named after a section of immigration law which allows agricultural employers to hire temporary foreign workers when not enough U.S. farmworkers are available.127 The program is administered by federal and state authorities, creating a direct government responsibility to see that international human rights norms are respected.
H-2A workers can remain in the United States until completion of their employment contracts with sponsoring employers. When they finish, workers must return to their home country-usually Mexico-hoping to be recalled to work the following year.
Being recalled often depends on being submissive. Human Rights Watch found widespread fear and evidence of blacklisting against workers who speak up about conditions, who seek assistance from Legal Services attorneys, or who become active in the Farm Labor Organizing Committee (FLOC).
Human Rights Watch also found evidence of a campaign of intimidation from the time they first enter the United States to discourage any exercise of freedom of association by H-2A workers. Most pointedly, growers' officials lead workers through a ritual akin to book-burning by making them collectively trash "Know Your Rights" manuals from Legal Services attorneys and take instead employee handbooks issued by growers.128
About 26,000 foreign migrant workers with H-2A visas entered the United States legally in 1999. More than 10,000 of them went to North Carolina, making growers there the leading employers of H-2A workers in the United States.129 North Carolina's H-2A workers are mostly Mexican, single young men, who harvesttobacco, sweet potatoes, cucumbers, bell peppers, apples, peaches, melons, and various other seasonal crops from April until November.130
At home "there's no work," workers told Human Rights Watch as their main reason for emigrating.131 Many of the workers come from rural villages in Mexico. Some spoke Spanish with difficulty, as in their village at home people mainly speak Misteco, a local Indian language. In most cases earnings in U.S. dollars from their H-2A employment are the only source of income for their families and for their communities.
While not protecting the right to organize and bargain collectively, the H-2A program on paper provides benefits not afforded to undocumented workers. Workers in the H-2A program are supposed to earn at least the U.S. minimum wage of $5.15 per hour or a higher H-2A progran rate, which is based on farmworkers' average wages at the local and state levels. Besides a wage guarantee, the program requires free housing that meets Department of Labor standards, free transportation to and from Mexico, and coverage under state workers' compensation programs for work-related injuries and illnesses. H-2A workers are entitled to legal representation by federally funded Legal Services attorneys. However, H-2A workers are specifically excluded from the principal federal labor law for agricultural workers, known as AWPA.132 Among other gaps, this exclusion means that H-2A workers seeking recourse for violations of their work contracts may not go to federal court but instead must go to local state courts, where many worker advocates believe growers exert significant influence.
Even the H-2A program's modest benefits are precarious. Workers interviewed by university researchers, Legal Services attorneys, church-based delegations and reporters have said that they often are underpaid compared with promised piecework earnings. They described cramped, unsanitary housing that fails to comply with space, flooring, and sanitation standards. They said that they have to pay large fees to local recruiters in Mexico; and that they are afraid to fileworkers' compensation claims or seek legal help for any other problem because they will be sent home and never recalled to work in the United States.133
Growers are required to file paperwork and comply with procedural steps, like advertising for U.S. workers, to be eligible to secure H-2A workers. In 1989, to facilitate the employment of H-2A workers by assisting with the administrative details of the program, Craig Stanford Eury, Jr. founded the North Carolina Growers Association (NCGA). Eury was a former state labor department official familiar with H-2A requirements.134
The overwhelming majority of the approximately 10,000 H-2A workers in North Carolina are employed by the 1,050 members of the NCGA. These growers pay a fee to the NCGA for securing H-2A workers.135 In an interview with Human Rights Watch, NCGA head Eury called the H-2A program "the Cadillac of guest worker programs," citing "transportation, insurance, housing and housing inspections" and adding that he "can't figure out what more advocates want."136
Many farmworker advocates, however, find serious flaws in the H-2A program that violate workers' freedom of association."137 H-2A workers are forced to remain with their sponsoring employers for the duration of an agricultural season. They cannot leave their employers if conditions are intolerable or if their rights are violated without losing their legal status. At the same time, employers can terminate workers at will. Dismissal revokes their authorized work status, and they must immediately return to their country of origin. In sum, the H-2A program generates a climate in which the H-2A workers "labor under the realistic fear thatif they stand up for their rights, join a union, or do not work at the limits of human endurance, they will be fired and deported immediately."138
Organizing Among Pickle Workers
Approximately half of the 10,000 H-2A workers in North Carolina harvest cucumbers processed by the Mt. Olive Pickle Company in Mount Olive, North Carolina. The Mt. Olive company was founded in 1926 and is the fourth-largest pickle producer in the United States. It is the largest independent pickle company (that is, not owned by a conglomerate) and markets the number one brand of pickles in the southeast and the second-ranking brand of non-refrigerated pickles in the country.139
Separate from the migrant workers who pick cucumbers for growers that supply Mt. Olive, the company employs directly some 500 full-time year-round employees and over 800 employees during peak processing season. The company uses five local grading stations in North Carolina to contract with about fifty local cucumber farmers to provide the company with cucumbers. Mt. Olive contracts with these growers for delivery of a specified number of bushels, at a specified purchase price, grown in compliance with Mt. Olive's requirements and standards.140 These growers, in turn, employ thousands of cucumber pickers during the harvest. Most of the growers are members of the NCGA.
In May 1997 FLOC announced a union organizing drive to obtain better working conditions for the estimated 5,000 workers who harvest cucumbers for growers that supply Mt. Olive. FLOC is an Ohio-based migrant farmworkers' union created and led by current and former farmworkers and affiliated with the AFL-CIO.141 FLOC argues that processors like Mt. Olive protect their product's quality by influencing the way farmers cultivate and harvest cucumbers, so they should also use their influence to affect the way farmworkers are treated.
Mt. Olive has not agreed to recognize and bargain with FLOC, saying "We believe union representation on the farm is a decision for the farmer and the farm worker-a decision we will honor but not influence."142 Mt. Olive has explainedthat "since Mt. Olive Pickle company does not employ farmworkers. . . . it is unfair and inappropriate for us to interfere by trying to influence the decisions of farmers and/or the workers they employ."143 The company contends that "Mt. Olive Pickle Company is targeted solely because we have a well-known name in North Carolina, and we declined FLOC's demand to assist in unionizing farm workers."144 Company president Bill Bryan told Human Rights Watch "We do not have integrated operations. If we put too much burden on the growers, they can go to other crops. We do not have economic leverage over the growers."145
A decade ago, FLOC reached a landmark three-party agreement with Campbell's Soup company and Ohio tomato growers for a contract covering terms and conditions for farmworkers who supply Campbell's tomato products.146 The union is trying to replicate the Campbell's model with Mt. Olive by building a broad support coalition within North Carolina.147
There is no evidence that Mt. Olive Pickle Co. has directly interfered with farmworkers' organizing among its growers. The central question from a human rights perspective, however, is whether the economic benefits derived by Mt. Olive from the denial of workers' freedom of association at farms that supply the company create a moral responsibility, absent a legal one, to use its influence to promote respect for farmworkers' associational rights.
FLOC maintains that farmworkers' organizing rights are frustrated when large, centralized food processing firms refuse to meet workers in a bargaining relationship to improve wages and conditions in field operations that supply the large firms. Organizing individual-grower-by-individual-grower is practically impossible with a mobile labor force rotating through short crop cycles. To provide stability in an enduring employment relationship-even one marked by migrant labor that returns each year from Mexico-FLOC argues that large food processing firms should be open to new collective bargaining models that include workers, growers, and processing companies. The broader public policy question is whethersuch an obligation should be created by law if, in fact, it is the only practical way to give effect to workers' right to freedom of association in the agricultural setting.
Fencing Out Workers' Advocates
Among growers there is broad resistance to workers' organizing efforts in North Carolina agriculture. Both the NCGA and its member growers have undercut workers' associational activity with the union as well as with other workers' rights advocates, such as attorneys from the farmworker unit of Legal Services.
During a June 1999 visit to North Carolina, a delegation from the National Farm Worker Ministry, a church-based group, confirmed that cucumber growers in the state customarily refuse to grant union organizers and Legal Services representatives access to the farmworker camps located on their property. They often erect "No Trespassing" signs around the farmworkers' living quarters and require all visitors to be approved and accompanied by the growers.148
The employment contract that is standard for H-2A workers in North Carolina contains a clause restricting workers' access to legal advisors or union organizers. The clause says, "No tenancy in such housing is created; employer retains possession and control of the housing premises at all times. . . ."149 Tenancy would give workers the right to have visitors of their own choosing, including union representatives, legal advisors, medical outreach personnel, religious counselors, and others. Despite this clear breach of the principle of freedom of association, the U.S. Department of Labor has approved the NCGA's contract containing this clause.150 Similarly, the "Work Rules" issued by the NCGA states that "[T]he employer reserves the right to exclude any person(s) from visiting housing premises."151
The contract is known as the Agricultural Work Agreement, and it is standard for all NCGA members. In a letter of March 25, 1999 to Lori Elmer of Legal Services, Stan Eury stated that the new language of paragraph 6 adds a waiver provision establishing that "Any eligible individual wishing to exempt themselves from this tenancy condition can exempt themselves from this requirement by filing a request of waiver in writing with the North Carolina Growers Association prior to inhabiting the housing facility and beginning work." A farmworker in Mexico would have to be able to read and understand a dense legal contract and then muster the courage to write a "request of waiver" to avoid its restrictions, something that in practice is simply not going to happen.
NCGA official Eury said that "the tenancy clause . . . is designed to protect the rights, privacy, and privileges" of the farmworkers residing in the labor camps.152 He further stated that although the farmworkers employed by the NCGA members do not enjoy a right of tenancy in their employer-provided housing, nonetheless "our employees are not being denied the right to freely associate with persons of their choosing at their employer-provided housing. We welcome all true friends and advocates of farm workers to our camps who do not come in the disguise of self righteousness, while intending malicious harm."153
FLOC union organizer Vicente Rosales told Human Rights Watch that he and two other FLOC representatives visited the farmworker camp of an NCGA member employer. The employer was "annoyed by our arrival . . . [and] threatened us that if we did not leave, she would call the police, and she told us that we were on her property and that if we wanted to speak with her, we should call her beforehand so that she could be ready for us and that she would also have to be present during the interviews with the workers."154
On August 13, 1998, FLOC national president Baldemar Velásquez and three other FLOC organizers visited a labor camp operated by another member of the NCGA. About one hour after FLOC advocates entered the premises, two police officers arrived and broke up the meeting they were holding with approximately twenty residents of the camp.155 After FLOC organizers refused to leave the premises voluntarily, the officers arrested them on charges of trespass, based on the tenancy clause in paragraph 6 of NCGA's standard agricultural work agreement.156 Although the case was later dismissed, the local sheriff told FLOC organizers that he would continue to arrest anyone accused by North Carolina growers of trespassing.157
FLOC organizers also told Human Rights Watch that even when they successfully enter farmworkers' camps and speak at length with workers, they findthose workers "visibly afraid" of union organizers.158 One farmworker told a delegation from the National Farm Worker Ministry that the workers "had been told many things about the union-one thing was that the union was trying to get rid of the H-2A workers because they do not qualify for a union contract."159 When Human Rights Watch asked NCGA's Eury to comment on the FLOC organizing drive, he stated, "The union is attempting to line their own pockets at the expense of the workers. We give the workers everything that the union says it wants."160
Denying the Right to Legal Assistance
Lori Elmer and Alice Tejada of Legal Services told Human Rights Watch that in June 1998, when they visited an NCGA member's labor camp, they received treatment similar to that received by FLOC organizers. In June 1998, the staff attorneys received a call from a farmworker client at the camp. When they arrived in response to the call, they were invited to enter the premises by other farmworker residents. The grower called the sheriff, however, whose deputies arrived and instructed the attorneys to leave and threatened them with arrest if they failed to obey.161
When asked to comment on the incident, NCGA official Eury told Human Rights Watch that "it was an individual farmer who had been sued by Legal Services who didn't think it was right for them to go door to door soliciting complaints. He asked his workers if they wanted the people there. They said no. So the owner kicked them out. We did not deny access to Legal Services or the union."162
In a March 25, 1999 letter to Lori Elmer, Stan Eury asserted that "no NCGA member has ever denied you, or any other attorney the right to meet with a client."163 He added:
Everyone knows, in reality, that your visits do not result from specific requests or outreach activities, but rather are a systematic attempt on your unit's part to destroy the H-2A program by soliciting law suits and encouraging fraudulent workers compensation claims from our impressionable employees . . . It has become increasingly apparent that instead of trying to do meaningful things to improve the lives of farm workers, like the staff and members of the NCGA, you focus most of your energy and resources on trying to cause problems for the most compliant agricultural producers in the nation!164
The National Farm Worker Ministry delegation also encountered growers' antipathy toward unmonitored visitors in the camps. When the ministry delegation visited the camp of one of Mt. Olive's growers in June 1999, they found that "the grower, who knew in advance that we would be coming, stayed with us throughout the entire visit, except for a brief interval. We were told that we were free to visit his workers, but only if we checked with him first."165 During the Farm Worker Ministry delegation's visit, "the grower monopolized the conversation, answering questions that had been addressed to the workers."166
One month later, Human Rights Watch met the same pattern. When Human Rights Watch researchers arrived at a labor camp near Mount Olive, a bilingual Mexican supervisor with a cell phone asked, "Are you with Legal Services? Are you from the union?" Only after negative responses were Human Rights Watch researchers permitted to speak with workers, but under close monitoring by the supervisor.167
The supervisor remained with Human Rights Watch researchers as workers responded to questions about working conditions and associational rights. All responses were positive until one Human Rights Watch researcher asked to see the housing conditions. The supervisor accompanied this researcher into the barrack-style housing, offering a window of opportunity for workers to speak with another Human Rights Watch researcher outside the supervisor's presence. "They don't let us talk to Legal Services or the union," one worker whispered. "They would fire us if we called them or talked to them."168
NCGA's hostility to Legal Services is a focal point in orientation sessions and the accompanying materials provided to newly arrived H-2A workers. Juan Carlos Vieyra Ornelas, an intern with the Farm Worker Project of Benson, North Carolina, stated in a sworn affidavit that when he attended the NCGA orientation for 500 newly arrived H-2A workers from Mexico in Vass, North Carolina, in mid-1999, Jay Hill of the NCGA "spoke at length about the Farmworker Unit of Legal Services of North Carolina . . . He told the workers that Legal Services was their `enemy.' He told the workers they should avoid Legal Services. He told the workers to contact only the NCGA, and not Legal Services, if they had any problems."169
Vieyra Ornelas further stated, "Mr. Hill then held up a copy of the `Know Your Rights' booklet produced by Legal Services. He ordered workers to toss the `Know Your Rights' booklet into the trash can. He told the workers that after throwing away the `Know Your Rights' booklet, they could have a copy of the NCGA Employee Handbook."170 Following Hill's admonition, workers discarded their booklets en masse.
The handbook that NCGA gives to workers after they discard their "Know Your Rights" booklets is titled "Understanding the Work Contract" and warns:
FLS [Farmworker Legal Services] has a hidden motive when they approach you. They say that they are your friends and they are concerned about your rights and well being, but in reality their motive is to destroy the program which brings you to North Carolina legally . . . FLS discourage the growers with excessive suits which are for the most part without merit. The history of FLS shows that the workers who have talked with them have harmed themselves. Don't be fooled and allow them to take away your jobs.171
"Understanding the Work Contract" accuses Farmworker Legal Services of eliminating the H-2A programs in Idaho, West Virginia, Maryland, and Florida. It states that the 10,000 H-2A workers in Florida were "left with no hope of workingagain in the United States" and calls the Florida H-2A workers "witnesses of the danger of speaking to FLS."172
Mary Lee Hall, managing attorney in the Farmworker Unit of Legal Services of North Carolina, wrote to Eury about reports from H-2A workers that NCGA officials told workers "if they keep our booklets or if they are ever seen with one of our booklets, they will be fired or have serious problems with the Association. Jay Hill conveys this message to the workers and then watches as they, feeling compelled not to give NCGA a reason to fire or retaliate against them, throw the booklets in a trash can provided by NCGA."173
Eury responded by asserting, "Our worker orientation includes information about the Legal Services attack on our program and the H-2A workers that have lost their jobs in Florida and West Virginia and other areas as a direct result of Legal Services attacks on the H-2A program. Our workers freely choose whether or not to associate themselves with you. Many workers choose to trash your propaganda after they learn the truth about your motives . . . Your shameless representations that you want to help H-2A workers are reprehensible."174
Eury's NCGA highlights its hostility to legal services by posting a large banner across an entire wall at its Vass, N.C. orientation site for newly-arrived H-2A workers. The banner proclaims "Servicios Legales Quieren Destruir El Programa H2-A" ("Legal Services Want to Destroy the H-2A Program"), and declares underneath this banner "Don't be a puppet of Legal Services," "Don't believe what Legal Services tells you about the NCGA," and other admonitions against legal services.175
On paper, H-2A workers can seek help from Legal Services and file claims for redress for violations of H-2A program requirements (but not for violation of the right to form and join trade unions, since they are excluded from NLRA protection). However, in this atmosphere of grower hostility to Legal Services, farmworkers are reluctant to pursue legal claims that they may have against growers. In December 1997, the U.S. General Accounting Office (GAO) reported that "`H-2A workers . . . are unlikely to complain about worker protection violations fearing they will lose their jobs or will not be hired in the future.'"176 The fear of blacklisting is well-founded, according to a 1999 Carnegie Endowment study, which based its findings on interviews conducted in Mexico with current Mexican H-2A workers. The Carnegie study found that "[b]lacklisting of H-2A workers appears to be widespread, is highly organized, and occurs at all stages of the recruitment and employment process. Workers report that the period of blacklisting now lasts three years, up from one year earlier in the decade."177
Mary Lee Hall of Legal Services, speaking from the experience of conversations with hundreds of farmworkers, confirms that the existence of a blacklisting system against workers who complain "is known to every H-2A worker, and I have yet to meet one who did not take this threat seriously."178 The National Farm Worker Ministry delegation also reports being told by farmworkers that "[a]nyone who had dared to speak up in the past had been blacklisted . . . Word is spread of any H-2A workers who have spoken up about their working or living conditions, and those workers are sent back to Mexico and do not get rehired."179
Legal Services attorneys and others involved with H-2A workers and the H-2A recruiting process have reported concrete instances of blacklisting. Ventura Gutierrez, a labor organizer in California, told Human Rights Watch that he went to an H-2A recruiting office in Tlaxcala, Michoacan, Mexico, and saw a list of names posted on the wall, entitled "lista negra" (Spanish for "black list"), indicating which workers were not to be recruited as H-2A farmworkers. Gutierrez reported that a woman named Juana writes on a blackboard the names of people who are"blacklisted and therefore shouldn't get visas. Workers have to pay to get off the blacklist."180
We're in the orange ghetto.
-A Microsoft "permatemp" involved in worker organizing
Temporary work, part-time jobs, contracted and subcontracted employment, on-call employment, day labor and other forms of atypical, nonstandard, contingent, and often precarious work have shifted the ground workers stand on in the past decade. Nearly one-third of the U.S. labor force, or some forty million workers, are in what the Bureau of Labor Statistics calls alternative work arrangements. The widespread denial of associational rights for workers in these new forms of employment relations and the failure of authorities to protect them raise serious concerns under international human rights standards.
American labor law covering workers' freedom of association lags behind the reality these workers face. U.S. law presumes a stable employment relationship between a worker and a clearly identified employer. The paradigm was set in the 1930s, 1940s and 1950s with passage of the 1935 Wagner Act,181 the 1947 Taft-Hartley Act,182 and the 1959 Landrum-Griffin Act.183
While regular full-time work for one employer is still the norm for most workers in the United States, millions of others-and their number is growing-fit a variety of atypical molds. The largest group, some eighteen million, are regular part-time workers. About thirteen million are independent contractors and temporary, leased workers.184 Employment in temporary agencies doubled between1982 and 1989 and doubled again between 1989 and 1997 to some three million workers.185
Many nonstandard workers prefer their arrangements to full-time work with one employer. For many, alternative work arrangements fit their family, education, and lifestyle needs where regular full-time work would create conflicts. Flexible work arrangements can also provide a helpful dynamism in the larger economy, with the ability to rapidly shift human resources to their most productive uses.
But workers pay a price for these alternatives. Health insurance for workers and their families, for example, is usually tied to full-time or near-full-time employment. Two-thirds of all regular full-time workers have both health insurance and pension benefits through their employer. Just one-third of workers in alternative arrangements have these benefits; less than 5 percent of those who work for temporary agencies enjoy them.186 Moreover, as the federal government's Dunlop Commission found:
Whether voluntary or involuntary, part-time workers are lower paid per hour than full-time workers; have higher turnover rates; are disproportionally young and female; and are more likely to work for employers who do not offer pensions or health insurance. Perhaps seven million part-timers work fewer than 1000 hours per year and are exempt from Employee Retirement Income Security Act (ERISA) and Family and Medical Leave Act (FMLA) benefits. Unemployment insurance state earnings and requirements to be available for full-time work exclude most part-timers from UI benefits.187
Nothing in these kinds of contingent work arrangements inherently violates workers' freedom of association. Concerns about lack of health insurance or pensions, precarious job security and other problems of atypical workers are matters of social and economic policy. They might be implicated in a human rights report on social and economic rights. They might prompt recommendations for reforms like pro-rated benefits for part-time workers or universal health care for all workers. But atypical work cannot be said to violate workers' freedom of association in and of itself.
At the same time, problems associated with contingent employment often inspire workers to try to address them through collective action. Here is where the human rights issue involving freedom of association emerges. Workers engaged in nonstandard employment relationships often face employer violations of labor laws and regulation and legal impediments when they exercise the right to freedom of association. Either they are not "employees" as defined in labor laws, or the proprietor of the place where they work is not their "employer" under the law. Some employers take advantage of these loopholes.
A prominent example of blocked freedom of association for workers in nonstandard employment is found in the office cleaning industry. Tens of thousands of workers are employed by janitorial service agencies in all parts of the United States. Most of the workers are immigrants making the minimum wage or slightly more, with few benefits. Many cleaning workers have attempted to form and join unions in recent years through a "Justice for Janitors" campaign mounted by the Service Employees International Union (SEIU).
But where workers successfully organize their cleaning agency, building owners often retaliate by cutting off the service contract with the agency. Workers are left without a job and without a union, expressly because they exercised the right to freedom of association. Yet labor law remedies that are supposed to protect this right do not reach the building owners who punished the workers, because the owners are not the "employer" against whom unfair labor practice charges can be laid.188
Exclusion from labor law protection affects both workers at the absolute bottom of the labor market and workers near the top. At the bottom, many workers made to take public works jobs under various state and city "workfare" programs are defined as "trainees," not employees. While some steps have been taken to apply the Fair Labor Standards Act to such workers, they are not covered by the NLRA. They have no protection against retaliation for exercising rights of association.189
Workfare workers' lack of protection pits them against ordinary workers. By 1997, workfare participants made up 75 percent of the New York City Parks Department labor force, and almost one-third of city sanitation workers were in the state's workfare program, called the Work Experience Program (WEP).190 WEP workers have frequently protested working conditions and have sought greater protections, and organized workers have expressed concerns that good jobs are being eliminated to make room for exploited WEP workers, and that over time this will depress wages more widely. Some welfare recipients have even been recruited to serve as strikebreakers.191
A classic example involves Hattie Hargrove, a fifty-year-old custodial worker who was laid off by the Mineola (Long Island, New York) County Department of Social Services in 1992. Unable to find other work, she went on welfare. In 1993 she returned to her former job, but as a WEP worker earning not her former salary but $53.50 in cash assistance and $263 in food stamps per month. "I'd be making more money, and I'd have benefits instead of Medicaid," Hargrove told a reporter. "I know I would feel better because I'd be getting a paycheck and people wouldn't look down on me like I was crazy anymore."192
High-Tech Computer Programmers
The dilemma regarding freedom of association is stark for workers at temporary employment agencies, even at the high end of the economic ladder. They are defined as employees of the agency, not of the place of employment where they work. Therefore, if they want to exercise the right of association to organize and bargain collectively, they have to organize with other workers of the agency. Temporary agency employees usually have no contact and no opportunity to communicate with each other because they are spread among different work sites. Meanwhile, those temporary agency workers who work for long periods at one place, often called "perma-temps," have none of the rights, benefits or protections afforded to regular employees, including the right to form and join a union to deal with the employer.193
A recent, dramatic example of temporary agency workers' dilemma is found at the cutting edge of the new economy. Microsoft Corporation's elegant "campus" in Redmond, Washington indeed gives the appearance of a tranquil college setting. Graceful buildings are set among gentle slopes and winding brooks. Young people (mostly men) toss frisbees and play softball on broad lawns and fields. They gather in windowed cafeterias for lunch and snacks. Free video game machines are abundant. Shuttle buses with free candy baskets move employees around the site.
More than 20,000 workers are employed at Microsoft's Redmond campus and other nearby facilities. But 6,000 of them are not employed by Microsoft. Instead, they are employed by many temporary agencies supplying high-tech workers to Microsoft and other area companies. Many have worked for several years at Microsoft. They have come to be known as perma-temps, temporary employees working for long periods, often side-by-side in teams with regular, full-time employees (often referred to as "FTEs." in U.S. labor parlance).
Microsoft FTEs enjoy health insurance, pension plans, paid vacations and, most lucratively with the rising value of technology stocks in recent years, share ownership in the company. Perma-temps have none of that. They receive a generous hourly pay, usually $25-35 per hour, and nothing more. They have to pay $300 per month for family medical insurance. They often work fifty hours a week but are not entitled to overtime pay after forty hours because they are excluded from coverage by the Fair Labor Standards Act as highly skilled technical employees.
"It's an unbelievable erosion of what I expected from a company like Microsoft," said Marcus Courtney, a young Montanan who became a Microsoft perma-temp in 1996. "We do the same work, but for second-class status-no health, no pension, no vacation, no stock. We're in the orange ghetto," he said, referring to the orange ID cards that distinguish temporary employees from blue-carded FTEs.194
"Here's a common situation-tell me how you would feel," said Jeff Nachtigal, another Microsoft perma-temp. "You work on a project for months in a team of ten people, five perma-temps and five FTEs. You do the same things. You become friends. You're all part of the team. Then at the end of a project meeting, the FTEs plan a `morale' event paid for by Microsoft, a dinner at the nicest restaurant in town. But only for them. The rest of us just sit there."195
"We needed to do something," said Courtney. He and other perma-temps formed the Washington Alliance of Technology Workers (WashTech) in early1998, with help from the Communications Workers of America (CWA). The CWA is the union of AT&T workers and others in the high-technology sector.196
WashTech is in the early stages of an effort to organize Microsoft perma-temps. "We've got a long way to go," Courtney concedes. "We're starting by establishing WashTech as a reliable source of information for high-tech workers in the area." Courtney said he told CWA organizers, "We have to do it differently here. The old-style union tactics of house visits and leaflets blasting management won't be enough."
But WashTech has a "Catch-22"-type problem. By defining perma-temps as contractors employed by various temporary agencies, Microsoft avoids being their employer for purposes of the National Labor Relations Act's protection of the right to organize. Meanwhile, the agencies tell temps that in order to form a union management will deal with, they have to organize other employees of the agency, not just those working at Microsoft.
Placed by an agency at Microsoft since May 1998, Barbara Judd worked in a perma-temp group of eighteen workers involved in a project developing a tax preparation software package. The only Microsoft FTEs in the project were their supervisors and managers.
Judd has an MBA and worked for years as a financial analyst. "I spent nine years with one company as a regular full-time worker," she said, "with health insurance, a pension, and paid vacations. I always thought of temporary work as something to fill in for people who are out, or as a probation to see if you can do the job, then become a full-timer." Judd said, "Microsoft brought in a bunch of skilled, experienced people to develop this new product. They told us how important it was to the company. We came from four different temp agencies. We thought we'd go blue [convert from temporary to regular FTE status] once it was launched. Now they've told us we'll stay orange for at least two more years."197
In early 1999 Microsoft announced it was going to require agencies supplying workers to the firm to provide more benefits for temporary workers. But when Judd asked her agency about the move, "They told me, `We're grandfathered. We don't have to add benefits.' We were already upset about job titles and pay grade being out of line, both with each other and with other employees. And now this."198
Judd and her coworkers formed a union. Sixteen of the eighteen perma-temps in the group joined WashTech. " First we asked our Microsoft managers to bargain with us," she said. Management refused. A spokesman for Microsoft told the pressthat "`bargaining units are a matter between employers and employees' and Microsoft is not the employer of the workers."199
The group turned to their agencies, but agency managers refused to talk to them. One manager told the press that "`the company does not believe the group `is an appropriate bargaining unit under the federal labor laws.'"200 According to Judd, one manager told her, "`If you keep it up, we're going to sic Microsoft's lawyers on you.'"201
When the workers sought to distribute WashTech information at work, their Microsoft managers issued a "non-solicitation and non-distribution policy for Contingent Staff [perma-temps] . . . to help maintain Microsoft project site efficiency and security."202 That instruction was followed by another e-mail message: "Just a reminder that distribution of materials that are not related to Microsoft business purposes is PROHIBITED."203 But when asked if an employee's solicitation for a school fundraiser was covered by the ban, a manager responded, "That was not the purpose of my talking about the distribution of materials."204
Attempts to be recognized by the temp agencies were equally unavailing. "`We don't have to talk to you, and we won't' is what they told us," said Barbara Judd. "They told us we had to get all the temps from all four agencies that worked at other companies besides Microsoft. We had no way to know who they were or how to reach them. Besides, they had nothing to do with our problems at Microsoft."205
Frustration of these workers' freedom of association was subtle, not raw. Marcus Courtney, Jeff Nachtigal, Barbara Judd and other Microsoft permatempswere not fired for leadership or activity in WashTech.206 But their situation was still precarious. In February 2000, Microsoft announced a new policy effective July 1, 2000 limiting temporary workers to one year's employment at a time and requiring a one-hundred-day break between each individual's assignment at the company. Under this policy, perma-temps would have to take one hundred days off beginning July 1, 2000 unless they are hired as full-time employees. After one hundred days off, said a Microsoft manager, they would have to reapply for temporary work or request new jobs at a different company through their temporary employment agencies.207
Barbara Judd's permatemp post at Microsoft ended in March 2000 when the company announced it was abandoning the tax preparation software project that she and her coworkers developed.208 "We are discontinuing our development effort on the TaxSaver product," a manager told workers. "We will be announcing a partnership with H&R Block tomorrow morning."209
"We received two days notice" of being laid off, Judd told Human Rights Watch. Some workers moved to another tax preparation software company, but Judd decided to look for full-time employment. "I believe the temporary worker industry is making a profit at the expense of workers, and I don't want to be a part of that system," she said. "Workers who take temp jobs do not realize there is a larger impact than just the absence of benefits. You essentially lose the ability to organize . . . [T]he legal system is just not set up to deal with these long-term temp [perma-temp] issues."210
A cynic, or more generously a pragmatist, might say that Human Rights Watch's sympathy and attention should be saved for downtrodden workers like those in other case studies in this report, not devoted to skilled workers who can command a premium in the new, high-tech economy. But the right to freedom of association is fundamental. It is not tied to economic status. All workers have this right and should enjoy its exercise and protection. Indeed, medical doctors might well soon be another case study if their definition as independent contractors barsthem from negotiating with powerful HMOs about pay and practice conditions, including medical decision-making.211
Express Package Delivery Workers
Another example of the frustration of contract workers' freedom of association can be found in the package shipping business. Airborne Express is a nationwide package delivery company. Airborne employs directly, as its employees, about 18,000 workers represented by the Teamsters union. These workers have a national collective bargaining agreement with Airborne providing good wages and comprehensive benefits-health insurance, pensions, vacations. But about 15,000 other workers are employed in Airborne's underside. They work at nearly 300 Airborne subcontractors, with less than half the salary of regular Airborne employees and no benefits. To all appearances, though, they are Airborne employees. They wear Airborne uniforms and drive Airborne trucks. They report to work at Airborne buildings and watch Airborne training videos. They use Airborne's billing and records system. The contractors they work for serve Airborne as exclusive company contractors with a low-paid workforce.212
In November 1994, sixty workers at Airborne contractors in Rhode Island called Expressman Courier and Interstate Parcel formed a union and sought to bargain collectively with their companies. Airborne canceled the subcontracts, closed the companies, and fired all the workers. Shortly afterward, Airborne reopened the sites under new names and new contracts with the same managers, this time called Agents Transportation and Professional Delivery. These companies rehired former Expressman and Interstate workers, but only those they considered opposed to the union. They refused to rehire worker leaders and members active in the union. "They took all the non-union guys. The rest of us were out in the cold," said Peter Shaw, one of the leaders.213 The NLRB regional office backed up the workers' discrimination charge after an investigation, finding merit and issuinga complaint against Airborne and the contractors.214 The complaint awaits a decision by an administrative law judge.
With some variation, the scenario repeated itself in other locations. Workers at an Airborne contractor in Wisconsin called EEI formed a union in 1994. EEI commenced bargaining but refused to make an economic offer because, in the words of an NLRB complaint, "Airborne controls the revenue available to EEI."215 At a contractor in Ohio called Boone Cartage, workers formed a union in December 1997. As at the Wisconsin site, Boone claimed its hands were tied because Airborne controlled its revenues. Boone said if it raised workers' pay, Airborne would cancel its contract. Airborne, on the other hand, argued that Boone was an independent contractor and disclaimed any responsibility to bargain with Airborne workers at Boone.216
Dan Lamb, an Airborne contract worker at Boone, went on a forty-day hunger strike in mid-1998 to protest Airborne's refusal to deal with the workers' union. Lamb made $8 per hour, compared with regular Airborne workers' salary of $18 per hour. Lamb got no pension and had to pay for family health insurance by having $340 dollars per month deducted from his paycheck. "We've got to plant good seeds," said Lamb. "We've been planting bad seeds. Somebody's got to turn the tide."217
Asked about Lamb's protest, an Airborne spokesman said, "This is not an Airborne issue. It's Boone Cartage's issue. He's their employee. We don't determine his wages."218 Airborne threatened Lamb with legal action if he kept Airborne's name on his protest signs. Airborne refused to bargain with workers at Boone.219 This case is also before an NLRB administrative law judge.
In another case, Airborne did not wait. Management at First Choice Delivery, an Airborne subcontractor in New York, fired two leaders of an effort to form a union in 1995. One of them, Gary Livingston, had a 1993 letter of commendation from Airborne president Robert G. Brazzen. "We really appreciate all your efforts in extending superior service to our Airborne Express customers," the letter said.220
Airborne's status as a "joint employer" with its subcontractors is now being litigated in a half-dozen separate cases at the NLRB. It could take years for these cases to be decided. It is already more than five years since workers in Rhode Island and Wisconsin formed and joined their union and since worker leaders were fired. And this is a case where the legal "indicia" of joint employer status are quite strong, as with the open use of Airborne uniforms and trucks by subcontractors, for example. Many other companies find it easy to maintain the appearance of an arms-length contractor-subcontractor relationship by avoiding such superficial indications of a controlling relationship. This way, the large company effectively maintains control over the subcontractor and the ability to cancel a contract where workers exercise their right to freedom of association.
127 See Theodore St. Antoine, "Federal Regulation of the Workplace in the Next Half Century" (hereafter Federal Regulation), 61 Chicago Kent Law Review 631 (1985), 639.
128 See NLRB 1998 Annual Report, Chart 15, p. 20, showing that less than 40 percent of its caseload in 1948 involved unfair labor practices, compared to more than 80 percent in 1998. The report, at p. 6, states that 80 percent of unfair labor practice cases involve charges against employers.
129 See Subcommittee on Labor-Management Relations of the House Committee on Education and Labor, 96th Cong., 2d Sess., "Report on Pressures in Today's Workplace" (1980); Subcommittee on Labor Management Relations of the House Committee onEducation and Labor, 98th Congress, "The Failure of Labor Law: A Betrayal of American Workers" (1984); U.S. Department of Labor, Bureau of Labor-Management Relations, Report No. 134, "U.S. Labor Law and the Future of Labor-Management Cooperation" (1989).
130 See Paul Weiler, "Promises to Keep: Securing Workers' Right to Self-Organization Under the NLRA," 96 Harvard Law Review 1769 (1983), 1779-80.
131 See Richard W. Hurd, "Assault on Workers' Rights," a report for the Dunlop Commission (1994), p. iv.
132 See U.S. Department of Labor, U.S. Department of Commerce, Commission on the Future of Worker-Management Relations (hereafter Dunlop Commission), Fact Finding Report (May 1994).
133 See Commission for Labor Cooperation, Plant Closings and Labor Rights (1997) (available at the web site of the Commission, www.naalc.org). The findings were based on research directed by Prof. Kate L. Bronfenbrenner of the New York State School of Industrial and Labor Relations at Cornell University.
134 See Charles J. Morris, "A Tale of Two Statutes: Discrimination for Union Activity Under the NLRA and RLA," 2 Employment Rights and Policy Journal 327 (1998), p. 331. Reaching back to 1990 and adding workers found by the NLRB to be victims of discrimination in 1998, the total reaches more than 184,000. See ibid., NLRB 1998 Annual Report, Table 4, p. 137.
135 Ibid., p. 330.
136 See Richard B. Freeman and Joel Rogers, What Workers Want (Russell Sage Foundation 1999), pp.62, 88.
137 Ibid, p. 62. Freeman and Rogers reported that 15 percent of surveyed managers in non-union firms stated they would welcome an effort to form a union among their employees, and that "[w]hen we reported these results to business leaders, they were . . . interested in the 15 percent of managers who were pro-union `so we can get them fired immediately.'" Ibid., p. 88. See also Parker-Robb Chevrolet, Inc. v. Automobile Salesmen's Union, 262 NLRB 402, petition for review denied sub. nom Automobile Salesmen's Local 1095 v. NLRB, 711 F.2d. 383 (D.C. Cir. 1983), where a supervisor who protested management's order to fire workers for union activity because he felt they were his best employees was himself fired. The NLRB upheld the firing on the grounds that supervisors are excluded from protection of the NLRA. The appeals court upheld the board's ruling.
138 See Richard Epstein, "A Common Law for Labor Relations: A Critique of New Deal Labor Legislation," 92 Yale Law Journal 1357 (1983); "In Defense of the Contract at Will," 51 University of Chicago Law Review 947 (1984). Professor Epstein goes so far as to defend the "yellow dog" contract, outlawed in the 1932 Norris-LaGuardia Act, by which employers made workers promise not to join a union as a condition of hire.
139 See Daniel V. Yager, Timothy J. Bartl, and Joseph J. LoBue, Employee Free Choice: It's Not In The Cards; How Organized Labor Uses Authorization Cards to Avoid Secret Ballot Elections on the Question of Unionization, Labor Policy Association (1998).
140 See, e.g., Daniel V. Yager, "Has Labor Law Failed? An Examination of Congressional Oversight and Legislative Proposals 1968-1990," National Foundation for the Study of Employment Policy (1990).
141 See, e.g., John S. Irving, "Permanent Striker Replacements Should Not Be Banned," Government Union Review (Spring 1993).
142 See, e.g., Leo Troy, "Is the U.S. Unique in the Decline of Private Sector Unionism?", 11 Journal of Labor Research 111 (1990); "Convergence in International Unionism, etc.: The Case of Canada and the USA, 30 British Journal of Industrial Relations 1 (1992); "Beyond Unions and Collective Bargaining," Working USA, January-February 2000, p. 102.
143 See Lorraine Adams, "The Hazards of Eldercare: Overexertion, Assault Put Aides at High Risk for Injury," Washington Post, October 31, 1999, p. A1.
144 Employers may impose mandatory overtime on workers in the United States and dismiss workers who refuse overtime, except where workers have negotiated limits or refusal rights in collective bargaining agreements.
145 These and other unfair labor practices described here were confirmed by the NLRB in its Decision, Order, and Direction of Second Election, Palm Garden of North Miami and UNITE, 327 NLRB No. 195 (March 31, 1999), pp. 6-8, 13-14.
146 Cited in ibid., p. 4 (emphasis in original).
147 The food stamp program is a feature of social assistance in the United States that provides food subsidies to low income persons in the form of vouchers, called "food stamps," that can be used only to purchase food or other essential items in stores that accept the stamps. Full-time workers paid at or near the minimum wage are often eligible for food stamps. See, for example, Ted Rohrlich, "Living Wage Movement Targets County Government: Low-Paid Contract Workers Use Costly Public Benefits, Backers Say," Los Angeles Times, November 4, 1998, p. B1; U.S. General Accounting Office, "Welfare Reform: State and Local Responses to Restricting Food Stamp Benefits," Report RCED-98-41 (1998).
148 See NLRB Decision, March 31, 1999, p. 12.
149 Ibid., pp. 12-13.
150 Human Rights Watch interview, Miami, Florida, July 22, 1999.
154 The quoted statements are from Sylvain's credited testimony in the unfair labor practice hearing. See NLRB Decision (March 31, 1999), p. 14.
155 The ALJ's decision dated January 30, 1998 is incorporated in the NLRB Decision, March 31, 1999. Under NLRB rules, back pay is "mitigated" by any earnings the unlawfully fired worker obtains during the period after dismissal.
156 Human Rights Watch interview, July 22, 1999.
157 Human Rights Watch interview, Miami, Florida, July 22, 1999.
158 See ALJ Decision, January 31, 1998; NLRB Decision, March 31, 1999.
159 Human Rights Watch interview, Miami, Florida, July 23, 1999.
160 See, for example, National Conference of Catholic Bishops/United States Catholic Conference, "A Fair and Just Workplace: Principles and Practices for Catholic Health Care" (August 25, 1999), noting that "All church institutions must also fully recognize the rights of employees to organize and bargain collectively with the institution through whatever association or organization they freely choose," and "[I]t is up to workers-not bishops, managers, union business agents, or management consultants-to exercise the right to decide through a fair and free process how they wish to be represented in the workplace
. . . Catholic tradition respects their decision."
161 This and other unfair labor practices recounted here were confirmed by an administrative law judge who conducted a hearing on the evidence. See Decision of Administrative Law Judge Robert C. Batson, Villa Maria Nursing and Rehabilitation Center, Inc. and the Service Master Company and UNITE! Union of Needletrades, Industrial and TextileEmployees, Cases 12-CA-18137, 12-RC-7957, January 9, 1998, p. 6.
162 Ibid., p. 7.
163 Ibid., pp. 9-10.
164 Ibid., pp. 7-8.
165 Human Rights Watch interview, Miami, Florida, July 23, 1999.
166 Ibid., p. 15.
167 Human Rights Watch interview, Miami, Florida, July 23, 1999.
168 See NLRB Region 12, Complaint and Notice of Hearing, The Palace at Kendall and Home Nurse Corp., Case 12-CA-19278, August 28, 1998.
169 Human Rights Watch interview, July 23, 1999.
171 Ibid.; according to Jewel Parham, other workers " snitched on us."
173 See NLRB Complaint and Notice of Hearing, August 28, 1998.
174 Human Rights Watch interview, July 23, 1999.
175 The settlement agreement contains a standard non-admission clause to the effect that settling the case and paying the workers do not constitute an admission of unlawful conduct.
176 Human Rights Watch interview, July 23, 1999.
177 Human Rights Watch interview, Palm Beach, Florida, July 24, 1999.
178 See NLRB Decision and Order, PVMI Associates, Inc. D/b/a King David Center et.al. and 1115 Nursing Home Hospital & Service Employees Union-Florida, 328 NLRB No. 159 (August 6, 1999), p. 10.
179 Ibid, p. 12.
180 Ibid., p. 13.
181 Ibid., p. 14.
182 Ibid., pp. 14-15.
183 Ibid., p. 21.
184 Ibid., p. 21.
185 Human Rights Watch interview, Palm Beach, Florida, July 24, 1999.
186 NLRB Decision, p. 18.
187 Human Rights Watch interview, Palm Beach, Florida, July 24, 1999.
188 See NLRB Region 12, Draft Settlement Agreement, Greenwood Rehabilitation Center (formerly King David Center), Cases 12-CA-16368 et.al., December 1999.
190 Human Rights Watch telephone interview, Miami, Florida, March 15, 2000.
191 Human Rights Watch telephone interview, North Miami, Florida, March 20, 2000.
192 Ibid. It must be noted that this new unfair labor practice charge is still at the allegation stage. It is cited here for Duval's perception of his treatment, and because it is consistent with the earlier finding by an administrative law judge that management "was determined to rid itself of the most vocal union supporter."
193 In elections with significant numbers of workers who speak another language, the NLRB provides an interpreter to assist with procedural questions.
194 See NLRB Region 12, "Hearing Officer's Report on Objections to Rerun Election with Findings and Recommendations," Case No. 12-RC-8275, May 21, 1999. The hearing officer overruled all the company's objections.
195 Human Rights Watch telephone interview, Lantana, Florida, March 8, 2000.
197 Human Rights Watch telephone interview, Riviera Beach, Florida, March 8, 2000.
199 Human Rights Watch interviews, March 8, 2000.
200 The official cited a personal experience of having to go through an arbitration proceeding in a union-represented facility in another state involving an employee who fell asleep while on duty. The arbitrator upheld the discharge. At the time of this interview, the manager's company was facing charges of unlawfully firing several workers for union activity.
201 See NLRB Region 20, Settlement Agreement, Marriott International, Inc., Cases 20-CA-28111 et.al., April 15, 1999.
202 See NLRB v. C&C Packing Co., 405 F.2d 935 (9th Cir. 1969).
203 See, for example, Steven Greenhouse, "Labor Rolls On in Las Vegas, Where Hotel Union Is a National Model," New York Times, April 27, 1998, p. A10; Michelle Amber, "First Pact Between HERE, MGM Grand Calls for On-Site Child Care Facility," Daily Labor Report (Bureau of National Affairs, November 21, 1997), p. A-1.
204 See NLRB Region 19, Order Consolidating Cases, Consolidated Complaints and Notice of Hearing, Stemilt Growers, Inc., Case No. 19-CA-25403 et.al.
205 See NLRB Region 19, Agreement, Stemilt Growers, Inc. and International Brotherhood of Teamsters, April 23, 1999.
208 See Keith Darce, "Deal Gives Union Good shot at Organizing Avondale Yard; New Managers Take Fresh Tack," New Orleans Times-Picayune, November 3, 1999, p. C1.
209 See Keith Darce, "Avondale to Become Union Yard; Long Labor Dispute Is Over," New Orleans Times-Picayune, December 1, 1999, p. A1.
210 The agreement is cited in HERE Local 2 v. Marriott Corporation, 961 F.2d. 1464 (9th Cir., 1992), p.3. This federal circuit court decision recounts the factual background used here.
211 See NLRB Region 20, Settlement Agreement, Marriott International, Inc. The settlement agreement contains a standard non-admission clause that "the execution of this agreement does not constitute an admission by the Charged Party that it has violated the National Labor Relations Act, as amended."
212 Human Rights Watch telephone interview, San Francisco, California, January 12, 1999. Sanchez was fired early in 1998; his wait is still a short one compared with that of many other workers in this report.
214 See letter from Senior VP George J. Palladino to Human Rights Watch, February 10, 2000, on file with Human Rights Watch.
215 See Hana DeWare, "Workplace rules at core of dispute between Marriott and hotel union," San Francisco Chronicle, February 18, 1999, p. B1. This article appeared before the NLRB found merit in workers' unfair labor practice charges and issued a complaint in the case.
220 See hearing transcript for February 11, 1999, pp. 4748-49, The Smithfield Packing Company, Inc. Tar Heel Division and United Food and Commercial Workers Union Local 204, AFL-CIO, CLC, Cases Nos. 11-CA-15522/15634/ 15666/15750/15871/15986/16010/16161/ 16423/16680/ 17636/ 17707/17763/ 17824, 1993-1998, on file at the Region 11 Office of the NLRB, Winston-Salem, North Carolina.
221 Human Rights Watch telephone interview, White Oak, North Carolina, October 12, 1999.
222 The regional director of the NLRB issued complaints finding merit in workers' charges that they were fired for union activity. Smithfield challenged these complaints. All these cases are still in litigation and face the prospect of many months, even years, until a final determination is made. An unfair labor practice hearing on many consolidated complaintsagainst Smithfield was held in late 1998 and early 1999 by an NLRB administrative law judge. His decision in the case is later in 2000. His decision can then be appealed to the NLRB in Washington, D.C. After that, the board's decision can be appealed to a federal court of appeals. The appeals court decision can then be appealed to the U.S. Supreme Court.
223 In the Matter of Smithfield Packing Company, Inc.-Tar Heel Division and United Food and Commercial Workers Union Local 204, AFL-CIO (hereafter Smithfield hearing transcript), November 4, 1998, pp. 1609-1620.
224 Ibid., pp. 1621-1624.
225 Ibid., pp. 1621-1631. Smithfield fired Latasha Peterson for alleged misconduct in February 1998. Management has claimed that her story is a false one motivated by the firing. Peterson replies that she testified against the company to make up for "manipulating my own people" (ibid., p. 1659).
226 Ibid., p. 85.
227 Ibid., p. 22.
228 Ibid., pp. 89-90.
229 Ibid., p. 90.
230 Ibid., p. 34.
231 Ibid., pp. 35-36. Sherry Buffkin signed a statement as Margo McMillan's supervisor stating grounds for termination. She later said that she signed the statement knowing it was false "because I had a job, I had a family and I know that you don't go against [the plant manager] or what I've been instructed to do by them. That's exactly where the statement come from." Ibid., p. 42. Buffkin was fired by Smithfield Foods in September 1998 for taking medication during work time. As with Latasha Peterson, management argues that Buffkin is a disgruntled ex-employee whose testimony is motivated by her firing. Buffkin stated at the hearing that she was fired because management became aware of her sympathies toward the union and her feelings of guilt about her conduct during the union organizing campaign. As a supervisor, Buffkin is excluded from coverage by the National Labor Relations Act and has no recourse for a dismissal based on union sympathy. She cannot be reinstated to work at Smithfield.
232 Smithfield hearing transcript, February 24, 1999, pp. 5992, 5998, 6024-25.
233 Smithfield hearing transcript, February 16, 1999, pp. 5188.
234 Human Rights Watch interview, Wilson, North Carolina, July 13, 1999.
235 Smithfield hearing transcript, February 16, 1999, pp. 5172.
236 Human Rights Watch telephone interview, White Oak, North Carolina, October 12, 1999.
237 Smithfield hearing transcript, pp. 5978, 5995. Luter based his characterization on reports from local plant management.
238 Police and company witnesses testified that Ward struck a police officer first. Charges and countercharges were later settled. Police officials said Ward admitted guilt; Ward argued that it was a reciprocal agreement not to prosecute and not to sue for wrongful arrest. The issue of what happened to Ray Shawn Ward is still before the administrative law judge of the NLRB, who is to rule on the unfair labor practice charge related to the incident.
239 See letter of Carol L. Clifford to Dale Talbert, Esq., August 7, 1997, on file with Human Rights Watch.
241 These unfair labor practices are described in more detail in NLRB Region 11, Order Consolidating Cases, Complaint, and Notice of Hearing, Smithfield Foods, Inc. and United Food & Commercial Workers, Case No. 11-CA-18316 (January 21, 2000).
242 Human Rights Watch interview, Wilson, North Carolina, July 13, 1999.
243 Human Rights Watch interview with four workers, Wilson, North Carolina, July 13, 1999 (these workers asked not to be identified).
248 Human Rights Watch interview, Wilson, North Carolina, July 14, 1999.
250 Human Rights Watch telephone interview, Wilson, North Carolina, August 17, 1999.
252 See "An Open Letter to the Employees of Smithfield Packing," characterized as "A message from the Wilson County Right to Work Committee-fellow citizens concerned for your future" (on file with Human Rights Watch). The mayor of Wilson did not respond to a written request from Human Rights Watch for an interview about his actions in connection with the union election at the Smithfield plant.
253 These payments are employees' share of health insurance premium costs. Total premium costs are higher.
254 Human Rights Watch interview with Cabana workers, Detroit, Michigan, April 20, 1999. Workers interviewed ranged from one year to ten years' service with Cabana.
0 Ibid. Workers who refuse a job offer can be denied unemployment insurance benefits. Employers gain when workers are denied benefits because unemployment insurance taxes are "experience-rated;" that is, taxes are higher for employers who lay off workers who are eligible for benefits.
1 To respect confidentiality, Human Rights Watch did not press individual workers to reveal if they were WorkFirst employees. The company did not respond to requests from Human Rights Watch for interviews or other information on the number of WorkFirst employees and other issues.
2 Under U.S. labor law, management can technically claim a "good-faith doubt" of the union's majority status even in the face of overwhelming evidence of majority support for the union. The union must then petition for a secret ballot election by the National Labor Relations Board.
3 Letter to Human Rights Watch, May 4, 1999, on file with Human Rights Watch.
4 Human Rights Watch interview, April 21, 1999. The former supervisor asked not to be identified.
5 Section 7 guarantees "the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ."
6 Section 8(c) of the NLRA states, "The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit."
7 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
8 See NLRB v. Village IX, Inc., 723 F.2d 1360 (7th Cir. 1983).
9 See Hunter-Douglas, Inc. v. NLRB, 804 F2d. 808 (7th Cir. 1986).
10 These examples should not be taken to mean that courts always, or even in most cases, overrule the NLRB on employer threats. A majority of NLRB rulings are upheld by the courts. But the leeway afforded employers by court precedents means that the NLRB mostly prosecutes "slam dunk" cases where the employer's conduct is so outrageous that a finding of violation is likely to be upheld on appeal. Cases that are closer to the borderline, or within the bounds of lawful conduct even when a common sense observer would hear a clear threat, rarely proceed. As a dissenting judge noted in another case where the court of appeals overruled an NLRB finding that the employer had unlawfully threatened workers, "An employer can dress up his threats in a language of prediction. `You will lose your job,' rather than `I will fire you' (and fool the judges). He doesn't fool his employees. They know perfectly well what he means." See NLRB v. Golub Corp., 388 F.2d 921 (2d Cir. 1967). The parenthetical remark is in the original citation.
11 Letter to employees of January 7, 1999 from company president (on file with Human Rights Watch; all emphases in original).
12 Human Rights Watch interview, April 20, 1999.
13 Under the NLRA, workers can seek another NLRB election after one year from the date of a previous election.
14 Human Rights Watch interview, April 20, 1999.
16 See, for example, Bettina Boxall, "How Fair Is Workfare?: Rapid expansion of programs raises new questions about the rights of participants," Los Angeles Times, March 9, 1997, p. B1; Steven Greenhouse, "Wages of Workfare," New York Times, July 7, 1997, p. B3.
17 Human Rights Watch telephone interview with Alan Durkee, director, Office of Financial Assistance Programs, Family Independence Agency (FIA), Department of Social Services, State of Michigan, February 24, 2000; and "Strikers" section of the Program Eligibility Manual of the FIA, numbered PPB 1998-003, 4-1-98.
19 Federal law requires that a grievance procedure be available to determine whether a welfare-to-work employee had "just cause" to fail to keep a job, but the just-cause provisions do not take firing for pro-union sympathy or activity into account. Failure to prove just cause leads to temporary loss of benefits. A narrow exception applies to a food stamps-only recipient: where a worker "must join, resign from, or refrain from joining a labor organization as an employment condition," food stamp benefits can be maintained if employment is not accepted. This exception is not applied for benefits besides food stamps. See "Failure to Meet Employment Requirements: FS-Only Cases," Program Eligibility Manual, FIA, PPB 1999-008, 10-1-99; "Failure to Meet Employment Requirements: FIP," Program Eligibility Manual, FIA, PPB 1999-008, 10-1-99.
20 Human Rights Watch Durkee interview.
22 See "Failure to Meet Employment Requirements: FS-Only Cases" and "Failure to Meet Employment Requirements: FIP," Program Eligibility Manual, FIA.
23 See 64 Federal Register 17776; 17793-97 (April 12, 1999).
25 For a survey of rules affecting welfare-to-work employees, see National Employment Law Project, "Employment Rights of Workfare Participants and Displaced Workers" (2000).
26 Human Rights Watch interview, March 19, 1999.
27 See NLRB Region 5, Consolidated Complaint and Notice of Hearing, Precision Thermoforming and Packaging, Inc. and United Electrical, Radio and Machine Workers of America, 5-CA-25642, 25699, 25802, 25805, 25853, April 7, 1997.
28 Human Rights Watch interview, Baltimore, Maryland, March 19, 1999. In a separate proceeding, the Maryland unemployment compensation commission held a hearing on the circumstances of Gardner's dismissal. The commission found no evidence of misconduct, and awarded him unemployment benefits.
30 See Joe Matthews, " Opportunity and Disillusionment in Pigtown," The Baltimore Sun, November 7, 1996, p. 1A.
33 Human Rights Watch interview, March 19, 1999.
34 Human Rights Watch interview, March 19, 1999. Gardner told Human Rights Watch he saw Vietnamese workers being taken to separate captive-audience meetings, and was told by Vietnamese workers about management's "riot" claims.
35 See Matthews, "Opportunity and Disillusionment."
36 See Complaint and Order of Hearing, Precision Thermoforming and Packaging, Inc. and United Electrical, Radio and Machine Workers of America, 5-CA-25642 et.al., August 8, 1996; NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
37 See Kevin L. McQuaid and Joe Matthews, "Baltimore employer of 600 to close," Baltimore Sun Arundel Edition, March 20, 1997, p. 1A.
38 Human Rights Watch interview, March 19, 1999.
39 Based on data covering 1986 through 1993. See U.S. Department of Labor and U.S. Department of Commerce, Commission on the Future of Labor-Management Relations, Fact Finding Report (May 1994), p. 74.
40 NLRA Section 8(a)(5).
41 See NLRB v. Montgomery Ward & Co., 133 F.2d 676 (9th Cir. 1943).
42 Human Rights Watch interview, July 8, 1999.
43 Letters signed by Acme workers to NLRB General Counsel James K. Stevens, March 1988, on file with Human Rights Watch (Spanish originals translated by Human Rights Watch).
44 These and other reprisals were the subject of numerous unfair labor practice complaints issued by the NLRB that were later settled by the company. See Acme Die Casting, To the Employees of Acme Die Casting, company memorandum announcing settlement and restoration of past practices, March 29, 1989 (on file with Human Rights Watch).
45 Human Rights Watch interview with Terry Davis, UE representative, July 5, 1999.
46 See Acme Die Casting, a Division of Lovejoy Industries, Inc. v. NLRB, 26 F.3d 162 (D.C. Cir. 1994).
47 Ibid. Under NLRB rules, no particular penalty attaches to such fraudulent behavior. It is just another piece of evidence of an unfair labor practice. No punitive measures against workers' rights violations are permitted under U.S. law. Remedies consist only of cease-and-desist orders, reinstatement orders, bargaining orders, and the like.
48 See Francine Knowles, "Acme Die workers to get $900,000," Chicago Sun-Times, March 3, 1998.
49 See NLRB v. Lovejoy Industries, Inc., 904 F.2d 397 (7th Cir. 1990).
50 See Acme Die Casting and United Electrical Workers (UE), 315 NLRB 202 (1994).
52 Human Rights Watch interview, Chicago, Illinois, July 5, 1999.
54 See NLRB, "NLRB Casehandling Manual," Part Two, section 11120.
56 Human Rights Watch telephone interview, July 8, 1999. The manager quoted did not agree to an interview but did, without prompting and without conditions, offer the statement cited here. Most company managers in other cases studied for this report refused to speak with Human Rights Watch.
57 Human Rights Watch interview, New Orleans, Louisiana, May 11, 1999.
58 The rest of the Avondale labor force is salaried supervisory, managerial, engineering and technical personnel not part of the bargaining unit sought by the Metal Trades Council.
59 Human Rights Watch interview, May 11, 1999.
60 Quoted in NLRB, Decision of administrative law judge David L. Evans in Avondale Industries, Inc. and New Orleans Metal Trades Council, Cases 15-CA-12171-1 et.al., February 27, 1998. It should be noted that Bossier's statements were found by the judge not to contain unlawful threats or promises. The judge found Bossier's calling pro-union employees whiners, malcontents and slackers "only simple name-calling" (Ibid., p. 27). However, the judge did rely on Bossier's speech, which he termed "a diatribe toward prounion employees," as "raw evidence of animus toward the employees' protected activities" that supported other unfair labor practice findings, particularly those involving discriminatory discharges (Ibid., p. 51).
62 This is the standard NLRB remedy for unfair labor practices. Reinstated workers are entitled to back pay for time off the job, "mitigated" by subtracting all interim earnings the worker was able to obtain.
63 Administrative Law Judge decision, February 27, 1998, pp. 106-107.
64 Human Rights Watch interview, May 11, 1999.
65 Human Rights Watch interview, May 11, 1999.
66 Human Rights Watch interview, May 11, 1999.
67 See Frank Swoboda, "Avondale Faces Fine of $537,000 by OSHA," Washington Post, April 6, 1999, p. E2.
68 See NLRB Decision and Order, Avondale Industries, Inc. and New Orleans Metal Trade Council, 329 NLRB No. 93 (November 10, 1999). Avondale's new owner, Litton Industries, has appealed the NLRB's decision.
69 Human Rights Watch interview, New Orleans, Louisiana, May 11, 1999.
71 Human Rights Watch interview, New Orleans, Louisiana, May 11, 1999.
72 See letter to Human Rights Watch from G.H. Jenkins, Jr., rear admiral, SC, U.S. Navy, Office of the Assistant Secretary for Research, Development and Acquisition, July 29, 1999, on file with Human Rights Watch.
73 Human Rights Watch interview, New Orleans, Louisiana, May 11, 1999.
74 See Avondale Industries, Inc. v. NLRB, No. 97-60708, 1999 U.S. App. LEXIS 15036, July 7, 1999. It should be remembered that the case involving Avondale's objection to the election is separate from the unfair labor practice case involving threats, coercion, discrimination, firings and other company abuses. That case is still awaiting a decision by the NLRB in Washington on Avondale's appeal from the ruling of the administrative law judge.
75 Ibid., p. 14.
76 Ibid., p. 18.
77 See Keith Darce, "Avondale To Become Union Yard: Long Labor Dispute Is Over," New Orleans Times-Picayune, December 1, 1999, p. A1.
78 See U.S. General Accounting Office, "Prevalence of Sweatshops," GAO/HEHS-95-29, November 2, 1994.
79 For an account of the El Monte case, see Julie Su, "El Monte Thai garment workers: slave sweatshops," in Andrew Ross, ed., No Sweat: fashion, free trade, and the rights of garment workers (New York, Verso Press, 1997).
80 See 60 Minutes, "Hiring Rosa Martinez," CBS television broadcast, September 27, 199; Nightline, "Paying to Lose Our Jobs," ABC television broadcast, September 29-30, 1992.
81 See Steven Greenhouse, "Two-Thirds of Garment Shops Break Wage Laws, U.S. Says," New York Times, October 17, 1997, p. A37.
82 See Report, Los Angeles Jewish Commission on Sweatshops (January 1999); Patrick J. McDonnell, "Jewish Group Urges Reform of Sweatshops," Los Angeles Times, February 1, 1999, p. B1.
83 See Richard P. Appelbaum, "Global Commodity Chains, Emigrant Communities, and Labor in the Globalized Economy," UC MEXUS Global Migration Conference, Riverside, California, October 24-25, 1997, cited in Report, Los Angeles Jewish Commission, p. 13.
84 Human Rights Watch interview, New York City, June 15, 1999.
85 Human Rights Watch interview, New York City, June 15, 1999.
89 Human Rights Watch interview, New York, June 15, 1999.
90 Human Rights Watch interview, New York, June 15, 1999.
92 NLRA, Section 2.
93 See U.S. Department of State, " Initial Report to the U.N. Human Rights Committee" (July 1994), p. 166.
94 See Bravo v. Dolssen Companies, 125Wn.2d 745; 888 P.2d 147 (1995).
95 See The Packer, September 8, 1997, p. 1.
96 See Lynda V. Mapes, "Crisis in the Camps: Harvest without Housing," The Seattle Times, June 22, 1999, p. A1.
97 See U.S. Department of Labor, "Migrant Farmworkers: Pursuing Security in an Unstable Labor Market," Research Report No. 5 (May 1994).
98 See Don McManman, "Temporary workers put strain on schools, welfare," Tri-City Herald, September 21, 1997. p. 1.
99 See, for example, Steven Greenhouse, "Mexicans Were Denied U.S. Rights, Suit Says," New York Times, May 28, 1998, p. A18; Ken Guggenheim, "U.S. unions find new tool," Seattle Post-Intelligencer, May 29, 1998, p. C1; Raúl Trejo Delarbre, "Casablanca Laboral," La Crónica, June 1, 1998; Evelyn Iritani, "Mexico Charges Upset Apple Cart in U.S.," LosAngeles Times, August 20, 1998, P. D1.
100 See Molly Moore, "Mexican Farmhands Accuse U.S. Firms: Panel Hears Washington Apple Pickers," Washington Post, December 3, 1998, p. A36; Elizabeth Velasco, "Trabajadores agrícolas denuncian explotación en EU", La Jornada, December 3, 1998, p. 41; Arturo Gómez Salgado, "Denuncian migrantes violaciones laborales," El Financiero, December 3, 1998, p. 19.
101 See, for example, Arthur C. Gorlick, "State's apple hands abused, Mexico says: Complaint could lead to special investigation and even sanctions," Seattle Post-Intelligencer, September 9, 1999, p. A1; Farm workers are the subsidy," lead editorial, Seattle Post-Intelligencer, September 19, 1999 (beginning: "Mexico's accusation that Washington tolerates abuse of farm workers will be debated . . . but there's no debating that some agricultural sectors owe their success to systematic exploitation of migrant workers.").
102 Human Rights Watch interview, Sunnyside, Washington, November 6, 1999.
110 Highfill described his work in detail in testimony in an unfair labor practice hearing before an administrative law judge of the NLRB. See NLRB, Official Report of Proceedings (transcript), Stemilt Growers, Inc., Case No. 19-CA-25403 et.al., Vols. 16-17 (1999).
111 Human Rights Watch interview, November 6, 1999.
112 See letter to Annette Sandberg, Chief, Washington State Highway Patrol, September 2, 1997, on file with Human Rights Watch.
113 See Washington State Highway Patrol, Investigative Review, September 18, 1997, on file with Human Rights Watch.
115 Human Rights Watch interview, November 5, 1999.
116 See Investigative Review, September 18, 1997.
117 See NLRB Region 19, Order Consolidating Cases, Consolidated Complaints and Notice of Hearing, Stemilt Growers, Inc., Ag-Relate, Inc. and International Brotherhood of Teamsters, Case Nos.19-CA-25403 et.al.; Washington Fruit and International Brotherhood of Teamsters, Case Nos. 25702 et.al. (1998).
118 Stemilt worker affidavit to NLRB, on file with Human Rights Watch. The worker adds "I am married to a U.S. citizen. I became a lawful permanent resident here in the United States in about September of 1997."
119 Highfill's testimony is contained in NLRB, Official Report of Proceedings (transcript), Stemilt Growers, Inc., Case No. 19-CA-25403 et.al., Vols. 16-17 (1999).
120 Ibid., p. 2886.
121 Ibid., p. 2987.
122 Ibid., pp. 2877, 3007.
123 Ibid., p. 2875.
124 Ibid., p. 2878.
125 Undated company flyer, "Un Consejo Importante," on file with Human Rights Watch. Translation by Human Rights Watch, emphasis in original.
126 For recent, extensive treatment of the plight of migrant agricultural workers in the United States, see Daniel Rothenberg, With These Hands: The Hidden World of Migrant Farmworkers Today (New York: Harcourt Brace, 1999).
127 See Secs. 101(a)(15)(H)(ii)(a) and 218 of the Immigration and Nationality Act (INA), as amended by the Immigration Reform and Control Act of 1986; U.S. Department of Labor, Office of Audit, "Consolidation of Labor's Enforcement Responsibilities for the H-2A Program Could Better Protect U.S. Agricultural Workers," March 31, 1998, p. 4.
128 See affidavit of Juan Carlos Vieyra Ornelas, intern with Farm Worker Project of Benson, North Carolina, (hereafter Vieyra affidavit), August 10, 1999, on file with Human Rights Watch.
129 Sandy Smith-Nonini, "Uprooting La Injusticia," Institute for Southern Studies, March 1999, pp. 5, 7 (hereafter Smith-Nonini, "Uprooting,"; Leah Beth Ward, "N.C. Growers' Trade in Foreign Farm Workers Draws Scrutiny," Charlotte Observer, October 30, 1999, p. 1 (hereafter Ward, "Growers' Trade").
130 Human Rights Watch interview, Lori Elmer and Alice Tejada, staff attorneys of Legal Services of North Carolina, Farmworker Unit , Raleigh, North Carolina, July 13, 1999 (hereafter "Elmer-Tejada interview"); Ward, "Growers' Trade."
131 Human Rights Watch interview with migrant H-2A workers, near Mt. Olive, N.C., July 14, 1999.
132 See Migrant and Seasonal Agricultural Worker Protection Act, 29 U.S.C. §1802 (10)(B)(ii).
133 Elmer-Tejada interview; Smith-Nonini, "Uprooting"; Ward, "Growers' Trade"; see also National Farm Worker Ministry, "Harvesting for Mt. Olive: A National Farm Worker Ministry Delegation Report," ( July 29, 1999), p. 10 (on file with Human Rights Watch; hereafter "NFWM Report"). The ministry is a national coalition of church-based farmworker advocates headquartered in Chicago, and the delegation was headed by a representative of the North Carolina Council of Churches.
134 See Esther Schrader, "Widening the Field of workers: North Carolina man is among leaders seeking to expand program that lets U.S. farms hire foreign employees on temporary visas. But officials who oversee it cite problems," Los Angeles Times, August 26, 1999, p. A1.
135 Ward, "Growers' Trade."
136 Human Rights Watch telephone interview, Vass, North Carolina, May 8, 1999.
137 See, for example, "The H-2A Program in a Nutshell," Farmworker Justice Fund, Inc., November 1999.
139 Human Rights Watch interview, Bill Bryan, CEO of Mt. Olive Pickle Company, Mt. Olive, North Carolina, June 11, 1999; Our Pickled History, http://www.mtolivepickles.com/history.html (visited 10/23/99).
141 See Farmworker Justice Fund (Washington, D.C.), "FLOC Organizing Carolina Pickles," Farmworker Justice News, Summer 1997.
142 See Mt. Olive Pickle Co., "FLOC Position Statement," at the company's web site, http://www. mtolivepickles.com (last visited March 9, 2000).
145 Human Rights Watch telephone interview, Mount Olive, North Carolina, March 6, 2000.
146 Human Rights Watch telephone interview, Baldemar Velásquez, Toledo, Ohio, March 23, 1999; See Craig Whitlock, "Union targets pickle plants: Mount Olive migrant workers focus of organizing," News & Observer (Raleigh, N.C.), May 29, 1997, 1A; Ned Glascock, "Rally calls for union on farms," News & Observer, June 27,1998.A full account of FLOC's Campbell's Soups campaign can be found as a case study at the University of Pennsylvania's Wharton School of Business at http://rider.wharton.upenn.edu/~ethics/cases/soup.htm.
147 See, e.g., Patrick O'Neill, "Bishop takes up fight, calls pickers' cause just," National Catholic Reporter, July 17, 1998, 1.
148 See NFWM Report, p. 2.
149 NCGA Agricultural Work Agreement, on file with Human Rights Watch.
150 Under H2-A regulations, all work contracts must be approved by the Department of Labor.
151 NCGA "Work Rules," paragraph 12 (Vass, North Carolina, rev.1/27/97).
152 Letter from Stan Eury, president of the NCGA, to Lori Elmer, staff attorney of Legal Services, March 25, 1999, p. 5.
153 Ibid., p. 2.
154 Human Rights Watch interview, Vicente Rosales, FLOC organizer, June 30, 1999.
155 See Sandy Smith-Nonini, "Uprooting La Injusticia," Institute for Southern Studies, March 1999, at 29; Letter from Robert J. Willis, attorney for FLOC, to Stan Eury, president of the NCGA, June 1, 1999, p. 1.
156 Letter from Robert J. Willis, attorney for FLOC, to Stan Eury, president of the NCGA, June 1, 1999, p. 1.
158 Human Rights Watch interview, Baldemar Velásquez, president of FLOC, Matt Emmick, Farmworker Ministries, Ramiro Sasrabia, FLOC organizer, Faison, North Carolina, June 9, 1999.
159 See "NFWM Report," p.10.
160 Human Rights Watch interview, Stan Eury, president of the NCGA, Vass, North Carolina, June 10, 1999.
161 Human Rights Watch interview, Lori Elmer and Alice Tejada, staff attorneys of Legal Services, Raleigh, North Carolina, July 13, 1999.
162 Human Rights Watch interview, Stan Eury, president of the NCGA, June 10, 1999.
163 Letter from Stan Eury, president of the NCGA, to Lori Elmer, staff attorney of Legal Services, March 25, 1999, pp. 2-3.
165 See "NFWM Report," p. 3.
166 Ibid., p. 4.
167 Human Rights Watch interview, near Mt. Olive, N.C., July 15, 1999.
169 Vieyra affidavit, p. 1.
171 North Carolina Growers' Association, Inc., "Understanding the Work Contract," pp. 12-13.
172 Ibid. Florida H-2A workers employed in the sugar cane industry were replaced by mechanized harvesting equipment. Here and in other states cited, growers argued that aggressive legal advocacy forced them to leave the H-2A program and move to mechanical harvesting. More often, growers moved to employ undocumented workers who have no access to legal services. Farmworker advocates respond that growers abandoned H-2A workers rather than comply with the law. For more on the Florida events, see Robert McCabe, "Firms Cutting Cutters," Fort Lauderdale Sun-Sentinel, April 28, 1993, p.1D; for Idaho, see Warren Cornwall, "Businesses seek help in immigration roulette," Idaho Falls Post Register, May 19, 1997, p. A1.
173 Letter from Mary Lee Hall, managing attorney of Legal Services, to Stan Eury, president of the NCGA., July 2, 1999.
174 Letter from Stan Eury, president of the NCGA, to Mary Lee Hall, managing attorney of Legal Services, July 6, 1999.
175 A photograph of the banner and admonitions is on file with Human Rights Watch; Human Rights Watch translation of text.
176 Ward, "Growers' Trade," p. 30.
177 See Demetrios G. Papademetriou and Monica S. Heppel, Balancing Acts: Toward a fair bargain on seasonal agricultural workers, International Migration Policy Program, Carnegie Endowment for International Peace (1999), p. 13.
178 Letter from Mary Lee Hall, managing attorney, Legal Services, to Stay Eury, president of the NCGA, July 2, 1999, p. 3.
179 See "NFWM Report," pp. 4-5.
180 Human Rights Watch telephone interview, Ventura Gutierrez of the Farmworker Network, California, July 19, 1999.
181 National Labor Relations Act, 29 U.S.C. §§ 151-69. See Chapter III., The U.S. Legal Framework for Workers' Freedom of Association. above for a full description.
182 Labor Management Relations Act, 29 U.S.C. §§ 141-97. See Chapter III., The U.S. Legal Framework for Workers' Freedom of Association.
183 Labor-Management Reporting and Disclosure Act, 29 U.S.C. §§ 401-531. See Chapter III., The U.S. Legal Framework for Workers' Freedom of Association.
184 See Lawrence Mishel, Jared Bernstein, and John Schmitt, The State of Working America (Ithaca, New York, Cornell University Press, 1998), 243 ( based on Bureau of Labor Statistics, 1995 and 1997 contingent work supplements to the Current Population Survey, the basic BLS guide to labor market data).
185 Ibid., pp. 246, 249.
186 See, e.g., Nina Munk, "The Price of Freedom: In the much-romanticized free-agent nation, workers are liberated from routines, dress codes and office politics. As well as benefits, vacations and regular paychecks," New York Times Magazine, March 5, 2000, p. 50.
187 See U.S. Department of Labor, U.S. Department of Commerce, Commission on the Future of Worker-Management Relations, Fact Finding Report (May 1994), 21.
188 See Harry Bernstein, "While Building Owners' Profits Soar, Janitors Get Poorer," Los Angeles Times, August 15, 1989, Part 4, p.1; Stuart Silverstein, "Janitors' Union Vows To Turn Up Organizing Heat," Los Angeles Times, March 26, 1997, p. D1.
189 See Joel Dresang, "Demonstrators Protest W-2 Training System: Community group says it wants `real' jobs, wages for program participants," Milwaukee Journal-Sentinel, November 7, 1997, p. 3; Verena Dobnick, "Judge Rules Real Work Merits Real Pay; Says Training Cheated Homeless," Bergen County Record, March 20, 1998, p. A10.
190 See Melissa Healy, "N.Y. `Workfare' Not So Fair After All, Some Say," Los Angeles Times, July 5, 1997, p. 1.
191 See Nina Bernstein, "Fliers Given to Welfare Recipients Seek Workers to Cover a Strike," New York Times, April 8, 2000, p. A11.
193 For a description of an embryonic effort at association by temporary workers, see Steven Greenhouse, "Temporary Workers Seeking Code of Conduct for Job Agencies, New York Times, January 31, 2000, p. B1.
194 Human Rights Watch interview, Seattle, Washington, November 4, 1999.
196 Full disclosure: staff associates of Human Rights Watch voted in favor of representation by a New York-based local union of CWA in an NLRB election in October 1999.
197 Human Rights Watch interview, Seattle, Washington, November 4, 1999.
199 See Leslie Helm, "Technology: 16 Microsoft Temps Organize into Bargaining Unit; Labor: Group Hoping for Improved Benefits Signs a Petition Seeking Representation by Local Union," Los Angeles Times, June 4, 1999, p. C3.
202 Microsoft e-mail to all temporary workers, June 30, 1999, on file with Human Rights Watch.
203 Microsoft e-mail of September 17, 1999 (capitalized in original), on file with Human Rights Watch.
204 Microsoft exchange of e-mails, September 17, 1999, on file with Human Rights Watch. Discriminatory application of a work rule against distribution of worker organizing materials as distinct from other materials could give rise to an unfair labor practice charge. No charge was filed in this matter.
205 Judd interview.
206 See Nan Netherton, "Contingent Workers: Microsoft Changes Policy on Use of Temporary Employees," Daily Labor Report, Bureau of National Affairs, February 23, 2000, p. A-7.
207 See John Cook, "Microsoft Limits Amount of Time Temps Can Work; New Policy Could End Its `Permatemp' Problem," Seattle Post-Intelligencer, February 19, 2000, p. B3.
208 See Paul Andrews, "Microsoft drops TaxSaver software; Workers on project call decision a shock," Seattle Times, March 24, 2000, p. D3.
209 See Microsoft, "Partnering in the tax preparation category," e-mail to financial products group, March 22, 2000, on file with Human Rights Watch.
210 Human Rights Watch telephone interview, April 25, 2000.
211 See Amy Goldstein, "AMA Votes to Unionize Doctors: Group Acts in Response to Managed Care's Effect on rights, Duties of Physicians," Washington Post, June 24, 1999, p. A1; Charles Ornstein, "Seeking Treatment: Doctors' Groups Look for Ways to Stay Financially Afloat," Dallas Morning News, October 31, 1999 (noting "current antitrust law views independent physicians as small businessmen and regards collective bargaining as collusion").
212 Airborne representatives did not respond to requests from Human Rights Watch for interviews or further information about the cases described here.
213 See Bill Dermody, "Teamsters Says Airborne Is Playing a Shell Game," Journal of Commerce, May 17, 1997.
214 See NLRB Region 1, Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, Airborne Freight Company et.al. and Teamsters Local 251, Cases 1-CA-32742, 32767, March 27, 1997.
215 See NLRB Region 30, Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, Airborne Express, Enterprise Express and Teamsters Local 344, Cases 30-CA-12786, 12963 (June 7, 1996).
216 See NLRB Region 9, Order Consolidating Cases, Consolidated Compliant and Notice of Hearing, Airborne Express and Boone Cartage and Teamsters Local 957, Cases 9-CA-36244, 36272 1,-2,-3, December 31, 1998.
217 See Kirsten Wicker, "Going Hungry: Airborne Express worker goes on a hunger strike to protest low wages," Dayton Voice, July 23, 1998, 1.
218 See Glenn Burkins, "A hunger striker says he won't eat until his employer signs a union contract," Wall Street Journal, July 21, 1998, 1.
219 See NLRB Region 9 Complaint and Notice of Hearing,; Glenn Burkins, "A hunger striker says . . ."
220 See Marc Carey, "Worker in union drive finds back against wall," Albany Times Union, April 8, 1995.