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August 5, 2005
The Bramble Bush
by Kevin Morford

Illegal Discharges

     The recent schism in the AFL-CIO involves disagreements over how labor resources should be balanced between organizing new workers and lobbying politicians. The unions that have left the AFL-CIO believe that more resources should go into organizing unrepresented workers, and that less should go into lobbying and political campaigns. The AFL-CIO leadership prefers its existing allocation of resources.

     There is certainly good reason for all unions in the United States to be concerned about the number of workers who are not organized. In 1955, when the AFL and the CIO merged, unions represented about 35 percent of all workers in the United States. Today, that figure has declined to 12.5 percent. In other western industrialized nations, union membership has declined some, but at about 30 percent it remains more than twice as high as it does here. This means that it is not just changes in the nature of the global economy that account for the lower rate of unionization in the United States. There are other factors in play.

     One factor, which has contributed substantially to reducing unionization, is a widespread practice among employers of illegally firing workers who try to organize a union in their work place. Although the practice is illegal, the consequences for the employer are relatively light. Even if the employee pursues his or her legal remedies (which does not always happen), and even if the employer loses the case, the most likely outcome is that the employer will be required to pay back wages to the fired employee. Compared with the cost of having a unionized workforce, that is a relatively small price to pay. So to avoid the big cost of having a unionized workforce, some employers break the law and run the risk of incurring a small cost as punishment. In the 1950s, the number of workers who were fired for organizing activities was in the hundreds. By the 1990s, that number had climbed to more than 20,000 workers per year who were fired for organizing activities, and that number just reflects the number who were actually awarded back pay by the NLRB. There are undoubtedly many others who are illegally fired, but who fail to pursue or to win an award of back pay against the employer.

     The organization Human Rights Watch has published a comprehensive study of this issue, entitled “Unfair Advantage - Workers Freedom of Association in the United States under International Human Rights Standards.” After extensively surveying the theory and practice of the law regarding union organizing in the United States, it concludes that the right to organize unions here barely exists anymore, and that employers enjoy a culture of near impunity. According to the study, “Many workers who try to form and join trade unions to bargain with their employers are spied on, harassed, pressured, threatened, suspended, fired, deported or otherwise victimized in reprisal for their exercise of the right to freedom of association.” In practice, the United States does not meet international standards for protection of labor rights.

     Along with the loss of unionized workers, there has been a parallel shrinking of the middle class in the United States over the same period of time. The rich have gotten richer, the middle class has gotten smaller, and the poor have gotten poorer. In part, this is because strong unions do not only protect the wages of their members. They also tend to pull up the wages of other workers, by shifting employer and employee expectations regarding what is a fair wage. In addition, legislation in many jurisdictions requires that contracts for public entities pay the “prevailing wage” which as a practical matter is the union rate. Thus, even if a non-union contractor wins the bid on a public contract, the
non-union employees must be paid at the union rate of pay for their work on that contract. The continuing erosion of unionization in the work place hurts both union and non-union employees alike.

     Because the illegal tactics of employers are not effectively prevented or punished, efforts to organize more workers will continue to be very difficult. Difficult, but not impossible. In the early part of the last century, labor unions were treated as criminal conspiracies, and suppressed with the full weight of the law. Many labor organizers and striking workers were physically attacked, and injured or killed. Unions were still able to form, and to win labor rights, under those harsh circumstances. Today, when the right to form unions and bargain collectively is at least nominally legal, they should still be able to
organize new workers and work places. If they don’t, unionization will continue to shrink, and the pay and benefits of all workers will continue to shrink with the unions.





Kevin Morford is a political activist and an attorney in private practice in the Anchorage area.  He can be reached at kmorford@insurgent49.com.
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in-sur-gent (in sur'jent), n. 1. a member of a group which revolts against the policies of its leadership.