Argument: Employers rarely violate the law during union organizing campaigns

Issue Report: Employee Free Choice Act


James Sherk and Paul Kersey. “How the Employee Free Choice Act Takes Away Workers’ Rights”. Heritage Foundation. 23 Apr. 2007 – Illegal Firings Rare. Union activists argue that Congress should replace organizing elections with card checks because employers regularly fire union supporters during organizing election campaigns in order to intimidate the remaining workers.[25] They claim that this happens in one-quarter of organizing campaigns and that there were “31,358 cases in 2005 of illegal firings and other discrimination against workers for exercising their federally pro­tected labor law rights.”[26]

If union activists’ claims are correct, card checks would actually make it easier for companies to fire union supporters. Companies currently do not know how individual workers plan to vote in the privacy of the voting booth, but a union card signed in public is an entirely different matter. If the prac­tice of systematically firing workers who want to unionize is widespread, then the government should not strip those workers of their privacy by informing employers of exactly who has elected to unionize.

In fact, however, the activists’ claims are false. Illegal firings of union supporters are rare. Most unfair labor practice complaints that unions brought before the NLRB in 2005 were either with­drawn or dismissed.[27] The NLRB found substanti­ated evidence of illegal firings in just 2.7 percent of organizing election campaigns that took place that year.[28]
Misleading Numbers. Unions justify their claims of widespread illegal firings by using unreliable data from biased sources and by misrepresenting gov­ernment statistics. Their claim that companies fire workers in one-quarter of organizing drives, for example, comes from a survey of union organizers that was conducted by a former union organizer.[29] Union organizers are not an impartial source, and actual government investigations reveal little evi­dence of the employer misconduct they allege.

Even more misleading is the claim that “illegal firings and other discrimination against workers” occurred 31,358 times in 2005. The number comes from the 2005 annual report of the National Labor Relations Board.[30] The report shows that the NLRB ordered employers to pay that many workers back pay in 2005, but the NLRB awards back pay to resolve many types of disputes, only a few of which involve intimidation or organizing campaigns.

For example, if a company unilaterally changed working conditions by reducing hours to cut costs without first negotiating with the union, the NLRB would order the company to return to the status quo and bargain the changes with the union. The NLRB could also require the company to provide back pay to workers as though the changes never occurred by paying them for the hours that they would have worked had the company not reduced working hours. Asserting that all or even most awards of back pay are due to intimidation, fraud, or illegal firings during organizing campaigns is simply false.

If a company illegally fires a worker for support­ing a union during an election campaign, the NLRB will order it to reinstate that worker in addition to providing back pay. While the numbers of workers reinstated and awarded back pay would be the same if these remedies were due to illegal firings, govern­ment records show that reinstatement is far less common than back pay. The NLRB ordered just 2,008 workers reinstated in 2005, a number that includes workers who were illegally fired for other causes, such as discussing salary with their co-workers.[31] Union activists’ claim that employers fired or discriminated against more than 31,000 employees for trying to organize in 2005 reflects either a complete misunderstanding or misrepre­sentation of what the NLRB’s data really represent.

No Cure for Illegal Threats. Labor activists claim that employers regularly attempt to intimidate workers by threatening to shut down or move plants if workers unionize and argue that card checks could curtail this intimidation.[32] Union organizers say that employers make such threats in half of all organizing campaigns, although they rarely follow through.[33] But such threats are already illegal and are grounds for setting aside an election.

Card checks would also do nothing to prevent companies from making these threats. Abolishing private elections does not address the problem of employers making empty threats to their workers. Companies can deliver illegal threats just as effec­tively whether employees vote in private or sign up for a union in public. Union activists acknowledge this fact.[34]