The ITUC affiliate in the USA is the American Federation of Labour and Congress of Industrial Organisations (AFL-CIO).
Freedom of association / Right to organise
The law permits anti-union discrimination.
Barriers to the establishment of organisations:
- Other formalities or requirements which excessively delay or substantially impair the free establishment of organisations
- Even where a majority of workers have voted for the union in a secret ballot election, employers can refuse to recognize the union and delay bargaining by filing multiple appeals with administrative agencies and courts.
Restrictions on workers' right to form and join organisations of their own choosing:
- Restrictions on workers' right to join the trade union of their choosing imposed by law (i.e. obligation to join a trade union of a certain level e.g. enterprise, industry and/or sector, regional and /or territorial national)
- Workers employed as guards are significantly restricted in their ability to form and join unions of their own choosing because employers can refuse to bargain with a union representing guards if the union also admits into membership workers not employed as guards.
Categories of workers prohibited or limited from forming or joining a union, or from holding a union office:
- Other civil servants and public employees
- The National Labor Relations Act (NLRA) excludes public sector workers.
- Non-national or migrant workers
- The U.S. Supreme Court ruled in 2002 that undocumented workers are not entitled to back pay as a remedy for unfair labour practices under the NLRA, and that they are not entitled to reinstatement. These restrictions have made it difficult to enforce trade union rights on behalf of the millions of undocumented workers in the United States. The ILO’s Committee on Freedom of Association recommended, in November 2003, that the government should amend the legislation to bring it into line with freedom of association principles, but the United States has not done so.
- Managerial and supervisory staff
- Managerial and supervisory staff are excluded from the National Labor Relations Act (NLRA). Supervisors and managers may be required, on pain of termination, to campaign against the union regardless of their personal feelings about unionization.
- Agricultural workers
- Agricultural workers are excluded from the National Labor Relations Act (NLRA).
- Domestic workers
- Domestic workers are excluded from the National Labor Relations Act (NLRA).
- Others categories
- Independent contractors are excluded from the National Labor Relations Act (NLRA). The approximately 56,000 airport screeners who work for the Transportation Security Administration (TSA) have no rights of freedom of association or collective bargaining by virtue of a federal government order. Pursuant to a complaint filed by the AFL-CIO and the American Federation of Government Employees (AFGE) about the government’s violation of the rights of airport screeners, the ILO’s Committee on Freedom of Association expressed "concern" in 2006 over "the use of an ever-enlarged definition of work connected to national security to exclude" from collective bargaining employees that are further and further away from the type of employee considered to be "engaged in the administration of the State." (Case No. 2292, 794). Accordingly, the Committee recommended that the U.S. Government "engage in collective bargaining . . . with the screeners’ freely chosen representative" in matters "which are not directly related to national security issues." (798). To date, the screeners have not regained their rights of representation or collective bargaining.
- Others restrictions
- Unions have no right of access to employers’ property for purposes of organizing or communicating with workers regarding unionization and no right of reply to employer claims about the union or unionization.
Right to collective bargaining
Barriers to the recognition of collective bargaining agents:
- Excessive requirements in respect to trade unions' representativity or minimum number of members required to bargaining collectively
- Employers have no legal obligation to recognize and bargain with a union unless a majority of workers in an “appropriate bargaining unit” have authorized the union to represent them. Employers can choose to recognize a union on the basis of signed authorization cards from a majority of the workers, but alternatively can insist that the union prove its majority support in a secret ballot election.
Restrictions on the principle of free and voluntary bargaining:
- Exclusion of certain matters from the scope of bargaining (e.g. wages, hours)
- The Federal Labor Relations Act, covering federal employees, proscribes collective bargaining over hours, wages and economic benefits. It also imposes extensive management rights that further limit the scope of collective bargaining. Terms and conditions of employment subject to collective bargaining are also restricted by law for public employees in many states that allow public employee collective bargaining.
Limitations or ban on collective bargaining in certain sectors:
- Other civil servants and public employees
- The Federal Labor Relations Act gives limited collective bargaining rights to most federal sector workers, and about half the states have statutes or other rules establishing collective bargaining rights for state and local government workers. The rest of the states provide either no collective bargaining rights for public sectors or provide such rights for only limited categories of workers. Altogether, only about 75% of public sector workers have a right to collectively bargain. The ongoing \"War on Terrorism\" has been used as a pretext to significantly roll back labour rights for employees of the U.S. government. Under the 2004 National Defense Authorization Act, the Department of Defense was authorised to curtail collective bargaining rights until 2009 for its civilian employees. A panel of the U.S. Court of Appeals for the District of Columbia also struck down portions of the rules applying to employees of the Department of Homeland Security that abrogated certain collective bargaining agreements and limited the scope of collective bargaining. In North Carolina, for example, all public employees are denied collective bargaining rights.
- Other categories
- Managerial and supervisory employees and domestic workers are excluded from the Act, as are independent contractors, even when they are economically dependent on a single employer. Except in a few states, agricultural workers also lack collective bargaining rights.
- Other limitations
- Judicial decisions have interpreted federal law to permit employers to unilaterally impose terms and conditions of employment if the parties have failed to reach agreement and have bargained to impasse.
Right to strike
Ban or limitations on certain types of strike actions:
- Restrictions with respect to type of strike action (e.g. pickets, wild-cat, working to rule, sit-down, go-slow)
- The National Labor Relations Act (NLRA) and judicial decisions interpreting the law prohibit workers from engaging in sitdown strikes, partial strikes and secondary boycotts, and impose other restrictions on organizational or recognitional strikes. Workers at certain health care institutions must provide 10 days’ advance notice before engaging in a strike or picketing.such as intermittent strikes, secondary boycotts and other forms of mutual aid and protection.
Undermining of the recourse to strike actions or their effectiveness:
- Possibility to replace workers during lawful strike actions
- The National Labor Relations Act (NLRA) allows employers to replace striking workers permanently. Permanent replacement workers can vote in a decertification election to eliminate union representation.
Limitations or ban on strikes in certain sectors:
- Undue restrictions for "public servants"
- Federal government employees are prohibited from striking, as are most other public employees covered by state laws. Many state laws impose severe fines and other penalties—including in some cases criminal penalties-- on public employees who engage in strikes.
Transnational cereal maker Kellogg’s has locked out 220 members of the IUF-affiliated BCTGM since October 22 2013 at its factory in Memphis, Tennessee in an effort to force union acceptance of a plan to radically increase the use of casual workers. With this plan all newly employed workers would be employed as casuals with no guaranteed hours at significantly lower pay and benefits, effectively transforming over time the entire employment structure at the facility. The company calls this “The New Workforce of the Future”.
Kellogg’s organized this assault while the Master Agreement of 2012, which limits casual work, is still in force. The union insists that casual work must be negotiated within the framework of the agreement - and their members are watching the end of year festivities approach from the street side of the factory gate.
The US National Labor Relations Board issued a formal complaint on 16 January 2014 against giant retailer Walmart, saying it violated labour rules by threatening and punishing workers who joined pro-union protests.
The complaint says that the country’s largest employer and a long-time foe of unions violated employee rights in 14 states during the November 2012 Thanksgiving holiday protests.
The NLRB complaint, which consolidates a number of separate cases, involves more than 60 employees, including 19 who were fired or laid off illegally after taking part in the protests.
It names 60 Walmart supervisors and one corporate officer for taking action against workers that allegedly violated their rights.
At stores in numerous states, Walmart “unlawfully threatened, disciplined and/or terminated employees” for legally joining the protests and engaging in other legal activities that November, the NLRB said in a statement.
“The National Labour Relations Act guarantees the right of private-sector employees to act together to try to improve their wages and working conditions with or without a union.”
The NLRB issued the complaint after giving the company time to reach settlements with complainants that did not resolve the problems.
The complaint related to a nationwide campaign by pro-union Walmart workers and supporters from union groups during the 2012 Thanksgiving weekend, normally the heaviest shopping period of the year.
Replacement workers were hired in numerous strikes during 2012, most notably in a strike against Caterpillar Inc., which despite earning a record $4.9 billion in profits in 2011 insisted on a six-year wage freeze and a pension freeze for most of the production workers at its Joliet, Illinois plant.
In 2012, the National Football League locked out its referees and hired replacement referees. Most notoriously, 1,300 workers spread across five plants in the Midwest have been locked out by American Crystal Sugar since August 2011, with replacement workers performing their jobs.
Although employers are required to bargain in good faith once a majority have voted for union representation, many employers use delay tactics and other techniques to avoid reaching an agreement. A study of union elections conducted between 1999 and 2003 showed that more than 50% of newly organised units had no collective bargaining agreement one year after the election, and 37% were still without an agreement two years after the election. The typical remedy for an unlawful refusal to bargain is merely an order to bargain in the future, so there is little to deter employers who want to avoid bargaining. In 2009, the last year for which data is available, more than 8,700 charges were filed alleging failure to bargain in good faith, accounting for more than 50% of all unfair labour practice charges filed.
Although direct dealing with individual employees is unlawful once an exclusive bargaining agent has been designated by the majority, violations are not uncommon. For example, in the case of Hotel Bel-Air, 358 NLRB No. 152, decided by the National Labour Relations Board in September 2012, the employer was found to have engaged in unlawful direct dealing when it wrote a letter proposing severance benefits in return for a waiver of recall rights directly to employees who were being laid off, sidestepping the Union. The letter began by stating that the Respondent was “very happy to give you [the employee] the opportunity to decide for yourself whether you want to accept the” offer of severance pay.
In FY 2009, the last year for which the government collected this data, 366 charges alleging violations of the prohibition against employer domination or interference with a union were filed. These charges constituted 2,7% of the 16,541 unfair labour practices filed against employers by workers and unions that year.
Because of the latitude given to employers under U.S. law to campaign against unionisation and the weakness of the protections against outright anti-union discrimination, a USD 4 billion union-busting industry has developed in the United States consisting of consultants who advise employers on tactics to employ during union organising campaigns to discourage and intimidate workers from exercising their rights to unionise. These outside consultants are hired by employers in more than 80% of all organising drives.
Studies have shown that in the vast majority of organising campaigns, employers require workers to attend group “captive audience” meetings as well as one-on-one meetings with their supervisors to hear anti-union propaganda—tactics which are permitted under current law despite their intimidating effect on workers. A recent academic study found that workers were required to attend captive audience meetings with top management in 89 per cent of all organising campaigns surveyed, and that a majority of employees were required to attend at least five of these meetings during the course of a campaign. In 66 per cent of the campaigns workers were required to meet alone with their supervisors at least weekly.
Every year, thousands of charges are filed against employers alleging discrimination against workers because of their union membership or support, and every year the National Labour Relations Board awards millions of dollars in back pay to workers that have been unlawfully dismissed. In FY 2009, the last year for which data is available, employers were required to pay back pay totalling more than $76 million dollars to more than 14,500 workers and more than 1,500 illegally terminated workers were offered reinstatement.
In the private sector, managerial and supervisory employees, independent contractors and domestic workers have no right to form or join union, nor do agricultural workers except in a small number of states. These excluded categories of workers constitute approximately 15% of the private sector workforce. In the public sector, workers cannot be prevented from or punished for forming or joining organisations of their own choosing, including unions. However, as noted below, more than 7 million federal, state and local government employees, representing more than a third of the public sector workforce, do not have the right to collectively bargain—an essential corollary of the right to form unions.
Although workers whose rights have been violated may file unfair labour practice charges with the National Labour Relations Board, remedies for violations are notoriously weak and often are not imposed until years after the violation. Employers who illegally fire workers for union activity are only required to pay back wages minus what the worker has earned in the meantime—a sum that is typically so negligible that, as a 2000 report by Human Rights Watch concluded, employers consider it to be a “minor cost of doing business”. The only remedy imposed when an employer threatens workers with retaliation for union activity is a cease and desist order and a requirement that the employer post a notice saying it will not violate the law again, and the typical remedy for a refusal to bargain is simply an order to bargain in the future. These remedies are inadequate either to deter violations or to adequately compensate the victims of unlawful conduct.
A recent academic study found that in 57% of the campaigns surveyed, workers were threatened that their workplace would shut down if they chose to be represented by a union, and that in 47% of campaigns they were threatened with a loss of wages or benefits. 64% of campaign workers were interrogated about how they and other workers were going to vote and 14% were put under surveillance by their employer. To intimidate workers, 21% of employers called in police to do walkthroughs in the work place, and 14% bring in security guards or put up security fencing. Most egregiously, workers were dismissed in 34% of the campaigns.
Under U.S. law unions have no right to maintain their own bulletin boards in employer workplaces and the employer is not required to allow the union to post notices on its bulletin boards unless it permits workers to use the bulletin boards to post other, non-work-related material. Employers may also establish rules prohibiting the distribution of union literature in work areas, even if the employer itself distributes materials in those areas. Although workers generally have the right to distribute news and leaflets in non-work areas, these rights are frequently violated during union organising campaigns.
Workers in the U.S. are restricted in their ability to engage in picketing and other forms of protest on employers’ property. The law also prohibits secondary picketing and limits picketing which has the object of organising workers or obtaining recognition from the employer. In January 2013, the United Food and Commercial Workers Union and its community affiliate, Our Walmart, which had engaged in nationwide demonstrations at Walmart stores protesting about the retaliatory action taken against Walmart workers who had spoken out for better pay, fair schedules and affordable health care, had to disavow any intent to represent Walmart workers and promise not to picket for a period of 60 days to forestall the government from going to court to obtain an injunction to stop the demonstrations.
The National Labor Relations Board (NLRB) reported in 2011 that in the year ending September 30, 2009, as a result of complaints brought to the agency, 1,549 workers who had been illegally discharged or denied employment because of their union activities were offered reinstatement. In addition, 15,554 workers received backpay totalling USD 76.8 million.
Experts consider these numbers to reflect only a portion of the total number of workers illegally terminated or discriminated against, since many workers never file charges.
During 2011, a number of high-ranking government officials and candidates for high office openly expressed their hostility to unions and workers’ exercise of freedom of association.
The newly-elected Republican governor of South Carolina, for example, announced to the press that she was appointing a lawyer specialising in “union avoidance” to head the state’s department of labor because “we’re going to fight the unions and I needed a partner to help me do it”. Notwithstanding that there are more than 59,000 union members in South Carolina, she subsequently declared in a televised address to the state legislature that her administration would “make the unions understand they are not needed, not wanted, and not welcome in the state of South Carolina”.
Mitt Romney, the leading contender for the Republican presidential nomination, ran televised campaign ads in which he referred to the members of the National Labor Relations Board (NLRB), the government agency which administers the federal labour law, as “union stooges”. He, and other Republican candidates for the presidency, repeatedly attacked unions and the NLRB during televised candidate debates.
Republican legislatures also pushed to expand the reach of so-called “right- to - work” laws. Under those laws, unions - which are required by law to provide equal representation services to workers in the bargaining unit regardless of whether or not they are union members - are prohibited from charging service fees to non-members. Right to work laws provide financial incentives to workers not to join the union and pay dues, since by not joining they can receive the benefit of the collective agreement and grievance and other representation services from the union without having to share in the cost of those services.
In 2011, right-to-work bills that would apply to the private sector were introduced in 14 states. Right-to-work provisions applicable to public sector unions were enacted in Wisconsin and were part of the anti-collective bargaining bill enacted in Ohio but subsequently overturned by referendum.
In addition to the flurry of right - to - work bills, 2011 saw the introduction in dozens of states of so-called “paycheck protection” bills. Those bills, also drafted by the American Legislative Exchange Council (ALEC), were designed to make it difficult for unions to collect dues from their members, and to use dues from members for political or advocacy purposes.
With regard to public employees, these bills would prohibit state employers from agreeing to allow union members to pay their dues to the union through automatic payroll deductions - this either altogether or with respect to any portion of their dues that the union uses for political purposes.
With regard to private sector employers, the bills would not prohibit such payroll deductions (which are permitted under federal law) but would require that the individual employee reauthorise the deduction every year in order for it to continue. “Paycheck protection” provisions applicable to public employees were included in the Wisconsin law limiting collective bargaining and were enacted in Alabama with respect to teachers.
In the U.S. Congress, dozens of anti-union measures were introduced in the Republican-controlled House of Representatives. Many of them aimed specifically at curtailing the ability of the National Labor Relations Board (NLRB) to effectively enforce federal labour laws.
Among measures passed by the House of Representatives in 2011 that were pending before the U.S. Senate by the end of the year was a bill that would deny the NLRB authority to get workers reinstated where their employer has illegally eliminated or transferred work in retaliation for the exercise of protected rights. Another bill would prevent the agency from implementing new regulations intended to streamline the process leading up to union certification elections so as to limit opportunities for employer interference. Other measures introduced sought to cut off or sharply curtail funding for the agency.
Republican-controlled legislative committees also conducted nine official “investigative” hearings regarding actions by the independent agency and demanded the production of thousands of pages of documents and emails relating to cases decided by the agency with which business organisations disagreed. These actions were widely seen as an effort to intimidate agency personnel and prevent the agency from enforcing the law. In the Senate, the Republican minority unsuccessfully sought to block President Obama from filling vacancies on the NLRB so as to prevent the agency from functioning.
In 2011, more than 800 bills seeking to eliminate or curtail collective bargaining for public employees were introduced in state legislatures, and a number of them became law.
The most notorious was legislation introduced in Wisconsin in February 2011. The legislation strips away most of public sector workers’ bargaining rights, limiting bargaining to negotiations over wages only (subject to a cap based on inflation); prohibiting collective agreements of more than one year’s duration; and requiring annual union recertification votes to determine if workers can continue to have union representation.
Despite massive citizen protests that brought out as many as 100,000 demonstrators at a time, attracted worldwide attention, and included a two-week occupation of the State Capitol, the bill was passed by the legislature in March and took effect three months later. Meanwhile, in Ohio, legislators enacted their own anti-collective bargaining law, also limiting public employee bargaining to wages only and, in addition, tightening prohibitions against public sector strikes and eliminating binding arbitration to resolve contract disputes. Public opposition to the Ohio law was so great that opponents were able to gather more than a million signatures on petitions to force a referendum on the measure. In November 2011, Ohio citizens voted by a substantial margin to repeal the law.
Teachers were a particular focus of anti-collective bargaining measures in 2011. In Idaho, legislation was enacted restricting bargaining rights for teachers to negotiations over wages and benefits, requiring all negotiated contracts to expire every year, and authorising school authorities to unilaterally impose terms if no agreement has been reached by a specified date each year. A new law in Michigan prohibits teachers from bargaining over discharge or discipline policies, layoffs, performance evaluations or merit pay, and in Tennessee collective bargaining for teachers was effectively abolished.
Elections in late 2010 that swept Republican Party conservatives into control of the U.S. House of Representatives and a majority of state legislatures and state governorships were followed in 2011 by an explosion of legislative initiatives. Those initiatives intended to weaken legal protections for workers against anti-union discrimination, limit or terminate collective bargaining rights for millions of public sector employees as well as eliminate important sources of financial support for trade unions and curtail their ability to advocate on behalf of their members in the political and public policy arenas.
A substantial percentage of these bills were drafted by the American Legislative Exchange Council (ALEC), a corporate-funded organisation whose “members” - some 2.000 conservative legislators and more than 300 of the world’s largest corporations - meet together behind closed doors to develop and vote on model legislation sought by corporate interests that the legislators then introduce and promote in the US Congress and in state legislatures around the country.
In addition to weakening unions and rolling back worker rights, ALEC’s agenda includes enactment of voter eligibility rules making it harder for minorities, the poor, students and the elderly to vote; reductions in and privatisation of public services; limitations on government regulation of commerce to protect consumers, the environment and public safety and health; and other measures to benefit particular industries and corporations that provide its corporate support.
Over the years, in a number of cases before the ILO’s Committee on Freedom of Association, the U.S. has been found to be in violation of freedom of association principles - for example, by permitting the use of permanent striker replacements (1991), by denying workers the right to meet with union representatives in the workplace to discuss organising (1991), by imposing restrictions on secondary boycotts (1992), by denying undocumented workers meaningful remedies for anti-union retaliation (2003), by denying collective bargaining rights to airport screeners (2006), by the maintenance of state laws that prohibit collective bargaining by public employees (2007), by excluding low-level supervisors from the protection of the National Labor Relations Act (2008) and by subjecting transit union officials to imprisonment, the union to fines in excess of USD1 million, and individual workers to financial penalties for engaging in a strike in violation of a state law prohibiting strikes by public employees (2011). None of these violations have been remedied.
In contrast to other workplace anti-discrimination laws, under which employers who violated the law can be required to pay compensatory and punitive damages, the remedies for violation of the National Labor Relations Act (NLRA) are weak, and often are not imposed until years after the violation. The typical remedy for an illegal threat by an employer to fire or otherwise discriminate against a union supporter or to close down a workplace in retaliation for unionisation is a requirement that the employer post a notice stating that it will not make such illegal threats in the future. The typical remedy for an illegal firing is a requirement that the employer reimburse the worker for lost wages, minus any wages the worker may have earned since the firing, offer the worker reinstatement, and post a notice saying that it will not fire workers for union activity in the future. The typical remedy for an employer’s unlawful refusal to bargain in good faith for an agreement is a requirement that the employer bargain in good faith in the future.
Studies have shown that in the vast majority of union organising campaigns, usually at the direction of outside consultants, employers require workers to attend group “captive audience” meetings as well as one-on-one meetings with their supervisors to hear anti-union propaganda — tactics which are permitted under current law despite their intimidating effect on workers. These tactics are frequently combined with illegal retaliation or threats of retaliation against union supporters. Based on statistics compiled by the National Labor Relations Board, it is estimated that one out of every five union activists involved in an organising campaign can expect to be fired.
Although employers are required to bargain in good faith once a majority have voted for union representation, many employers use delaying tactics and other techniques to avoid reaching agreement. A study of union elections conducted between 1999 and 2003 showed that more than 50% of newly organised units had no collective bargaining agreement one year after the election, and 37% were still without an agreement two years after the election. As employers are aware, failure to achieve a first contract tends to foster a sense of futility about the benefits of unionisation and disaffection with the union and can cause workers to vote to decertify the union as their bargaining representative.
Even after a union becomes certified as the exclusive representative of the workers, many employers engage in bad-faith bargaining in order to prevent the union from winning a first contract. Under current law, if no contract is reached for 12 months, the union’s status as bargaining representative can be challenged. As a result, 44% of all attempts at winning a first contract fail. Only one in seven organising efforts in which a petition is filed with the National Labor Relations Board (NLRB) achieve a first contract.
The failure of U.S. labor law to protect America’s workers from pervasive union busting is often used by foreign companies operating in the United States. The same company, under two different systems of law, results in two very different situations for workers especially when labor laws are stronger in the companies’ home countries.
According to a May 2009 report from the American rights at work education Fund and Economic Policy Institute, in the last 20 years, the private-sector employer opposition to workers seeking their legal right to union representation has intensified. Anti-union campaigns including coercive and punitive tactics such as workers’ threats, harassment, surveillance, and retaliation for supporting a union have increased. Employers also threaten employees with plant closure or even close plants. An analysis of the 1999-2003 data on NLRB election campaigns finds that: 63% of employers interrogate workers in mandatory one-on-one meetings with their supervisors about support for the union; 54% of employers threaten workers in such meetings; 57% of employers threaten to close the work-site; 47% of employers threaten to cut wages and benefits; and 34% of employers fire workers.
The U.S. National Mediation Board (NMB), the federal government agency that oversees labor-management relations in the rail and airline sectors, has proposed amending its election procedures to make it easier for workers to organize. It would permit a majority of workers who actually vote to decide the election and stop assigning “no” votes to workers who do not participate. As of this writing, the NMB has solicited public comment on the proposed rule change; after the comment period, a final rule will be issued.
The new rules would finally permit airline and rail workers to vote for unions under the same standards as other private sector workers (covered by the National Labor Relations Act). The AFL-CIO Transportation Trades Department and its 32 unions requested the NMB to allow airline and railroad workers to vote either “Yes” or “No” for union representation and to determine the outcome by a majority of the votes cast.