Report Blasts U.S. for Union Busting

by Michael Kreidler

Avante employees had twice voted, in landslide numbers, to align themselves with the Service Employees International Union. Both times, Avante had contested the elections and forced more rounds of voting. "After two elections, they knew who were the leaders of the union," said Pierre. Now the company is in an ongoing legal battle with the National Labor Relations Board (NLRB) that will likely take several years to resolve. Meanwhile, the move to unionize has all but dissipated at the Lake Worth facility.

Marie Pierre's story is one example of the huge problem documented in Unfair Advantage, a recent Human Rights Watch report about workers who have been fired for backing a union. The report's cases are widespread across an alarming number of industries. From agricultural laborers to high-tech computer specialists, American workers are being fired for organizing, a clear violation of international labor rights.

For a country that purports to have strong labor laws, the figures in Unfair Advantage are startling. For example, the report quotes NLRB statistics that over 20,000 American workers each year get some sort of restitution from employers who illegally fired them for union activity. And those 20,000 victims are only the ones whose cases have been decided; most complaints to the NLRB take years to settle, slowed down by lengthy appeals processes that favor employers. Best estimates place the NLRB backlog at nearly 25,000 cases.

According to the Human Rights Watch report, the government isn't doing nearly enough to defend workers' rights. The government's response to labor violations -- the NLRB -- is an understaffed, relatively weak agency, which only has resources to turn 15 percent of its cases into formal complaints. When complaints are addressed, and when suits are finally settled, the penalties for firing union supporters are modest at best, often no more than mere slaps on the wrist. Employers usually have to pay workers the wages lost after dismissal, minus income earned from other jobs they took after being fired. The sum often amounts to nothing more than a few thousand dollars.

Meanwhile, as workers like Marie Pierre hang in the balance of neverending lawsuits, waiting to get their jobs back, their efforts to organize unions are stymied. For most companies, the report concludes, the penalties are "a small price to pay to destroy a workers' organizing efforts by firing its leaders."

While there is very little economic risk for corporations to fire would-be union leaders, the perceived risk of being fired permeates entire unionizing campaigns. "Firing is the most potent anti-union weapon," said Lance Compa, Cornell University labor relations professor and principal author of the Human Rights Watch report. "The upshot is many employers can achieve their goal of remaining union-free by breaking the law."

There are other ways that U.S. law prevents millions of workers from organizing unions. While the National Labor Relations Act specifies that, "employees shall have the right to self-organization and to bargain collectively through representatives of their own choosing," Section 2 of the very same document says that the word employee "shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home ... or any person having the status of an independent contractor, or any individual employed as supervisor." Thanks to these clauses and subsequent court cases that have upheld them, millions of workers across the economic spectrum fall beyond union protection.

These shortfalls are all the more disturbing when one considers the rhetoric our goverment uses to pressure foreign nations in matters of workers' rights. When the United States signed the Universal Declaration of Human Rights in 1948, and later the International Covenant on Civil and Political Rights in 1992, it acknowledged the universal right to form and join trade unions. Nowadays, the U.S. government often uses the trump card of workers' rights in international negotiations, as it did with the China trade talks and in the 1996 World Trade Organization ministerial meeting.

Specifically, the study sharply criticizes the United States for failing to ratify Conventions 87 and 98 of the International Labor Organization. Labor experts consider the accords to be the bedrock of international workers' rights. Of Western nations, the United States and El Salvador are the only two countries yet to ratify both conventions. Despite never adopting these fundamental labor standards, as Human Rights Watch indicates, the United States is bound to the international guidelines surrounding ILO Conventions 87 and 98 by virtue of its membership in the organization. In addition, the United States has failed to ratify three-fourths of the declarations deemed as "priority conventions" by the ILO.

The Human Rights Watch report calls for the United States to send a signal to the international community by ratifying ILO Conventions 87 and 98. In bringing its labor standards up to par by honoring the ILO norms, the U.S. will have some credibility when it tries to pressure other nations to respect human rights conventions. The ILO lacks the power to impose any formidable sanctions, so the onus is on the United States government to voluntarily crack down against illegal firings and to uphold universal freedom of association for workers.

But to the more than 150,000 workers punished for supporting a union since 1992 who have languished through the lengthy appeals process, any gesture at this point would be a token measure. Labor leaders do agree that under existing provisions of the law, some steps can be taken to lead to a faster resolution and reinstatement. For example, fired employees could be allowed to remain on the job while the lengthy appeal processes drag on.

The reality, however, is that U.S. labor law continues to be stacked against employees attempting to unionize. The criticism of the international human rights community unfortunately falls on deaf ears, as leaders in Washington have turned the shoulder to corporate interests and given them carte blanche to violate the law. The implications are grim for the 25,000 people who will be illegally fired this year.