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U.S. Labor Law Fails to Protect Collective Bargaining

It’s well recognized that the ability to have a say in one’s working conditions is fundamental.  That’s why the right to form a union and engage in collective bargaining is considered a human right and a measure of democracy in the industrialized world.  So how is it that so few American workers have a collective voice about their working conditions?  Protection from being fired without just cause?  Or a union contract guaranteeing a level of wages and benefits?  Blame rests with the U.S. labor law system for failing to adequately protect workers’ rights to collective bargaining. 

The Value of Collective Bargaining 

  • The fundamental benefit of union representation is the contract workers negotiate with their employer through a collective bargaining process: a written agreement that can determine wages, hours and other conditions of employment.
  • Rarely do ordinary people have an opportunity to come together in large numbers and help shape the big decisions that impact their lives and indirectly affect all of us.  Given recent corporate excesses, this system of checks and balances is even more essential.
  • Many of the standards that have defined American jobs and facilitated the growth of the middle class have been negotiated at the bargaining table, including the 40-hour workweek, the weekend, employer-supported health insurance, pensions, family and medical leave, and basic safety and health protections.

U.S. Labor Law Fails to Protect Collective Bargaining 

The 1935 National Labor Relations Act (NLRA) was passed to protect the right of workers in this country to “bargain collectively through representatives of their own choosing.”  The NLRA requires that once workers form a union, the employer and the union are obligated to bargain in “good faith,” where both parties must “meet at reasonable times,” and productively confer about “wages, hours, and other terms or conditions of employment.” 

Yet the Law is Easily Manipulated: A simple, but effective unionbusting strategy for employers is to avoid meaningful bargaining at all costs.  "You haven’t lost until you sign a contract, consultants tell employers.  Consultants advise management on how to stall or prolong the bargaining process, almost indefinitely—bargaining to the point of boredom….”8   

American employers are now so proficient in sidestepping negotiations with their employees that 52 percent of workers’ unions who demonstrate majority support for union representation lack a collective bargaining agreement one year later.1  

How Employers Game the System:

  • Pretending to Bargain:  Even though the NLRA prohibits bad faith or “surface bargaining,” the law’s interpretations are so vague that Human Rights Watch determined it is extremely difficult to assess when employers are “going through the motions of meeting with workers and making proposals and counterproposals without any intention of reaching an agreement.”2   
  • Incentives for Reaching an Impasse:  The reward for employers who don’t negotiate fairly is permission to impose their own terms and conditions of employment after an impasse is reached, regardless of the recommendations of the union. 
  • Weak Labor Law Allows the Cycle to Repeat Itself:  If the National Labor Relations Board (NLRB) is able to prove that an employer was engaged in surface bargaining, it can only order the employer to return to negotiations and bargain in good faith.  Recalcitrant employers frequently resume bad faith bargaining all over again, where as a Human Rights Watch report noted, “the same cycle can repeat itself.”3   

Law Leaves Workers in Limbo

It is no surprise that so many workers in the United States are without union contracts when you examine the case of Champion Homes.  For over four years, the 250 workers who assemble houses at the Champion Homes plant in Lindsay, CA, have been struggling to secure a union contract. 

In July 2000, the workers voted for union representation by the United Brotherhood of Carpenters and Joiners of America (Carpenters).  They formed a union to address insufficient wages, benefits and unsafe production speeds that resulted in high injury rates.  One Champion employee, Pedro Nunez, was painting ceilings when a large piece of drywall fell on him.  Despite his injuries, the company doctor sent him back to work.4  According to Champion worker Tony Archer, “They want us to move as fast as we can.  They would rather lose the injured workers than to slow down.”5   

The Champion workers who hoped to address these problems instead found negotiations with management to be an exercise in futility.  According to Carlos Sahagun, a painter who has worked for the company for over 14 years, “We were almost negotiating with ourselves.” 

In late 2001, after months of failed negotiations, the Carpenters filed charges against the company with the NLRB for not living up to its duty to bargain.  Champion Homes withdrew recognition of the union and announced it would no longer negotiate with workers in 2002.

Finally, in January 2003, an Administrative Law Judge ruled that Champion Homes unlawfully refused to recognize and bargain with the union, and refused to provide the union with necessary information needed to bargain.6  The Judge then ordered Champion to “cease and desist” from refusing to bargain in good faith, to post a notice that it will not engage in the practices in the future, and to return to the bargaining table.

Unfortunately for the workers at Champion Homes, justice was not served with this NLRB ruling.  Predictably, the company refused to bargain in good faith.  As a result, the NLRB requested that a U.S. District Court issue an injunction to force the company back to the bargaining table.  In August 2003, a U.S. District Judge ordered the company to “immediately recognize and…bargain in good faith and at reasonable times with the Union.”7  The company appealed the injunction, and the workers have moved no closer to a contract that would allow them to address their problems at work. 

Despite these setbacks, Carlos Sahugan insists that he will continue to press for a union contract, and would “rather stay in limbo than let the company win. I’m not giving up the fight.” 

1  Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, American Rights at Work and Economic Policy Institute, 2009.
2  Human Rights Watch, Unfair Advantage: Workers’ Freedom of Association in the United States Under International Human Rights Standards," 2000.
3  Ibid.
4  Ibid.
5 United Brotherhood of Carpenters and Joiners of America, “Building Communities, One Home at a Time.”  August 2002
6 Decision of an Administrative Law Judge before the National Labor Relations Board San Francisco Division of Judges, Carpenters Union Local No. 1109, AFL-CIO, January 17, 2003. Case 32-CA-19152-1 et al, (ALJ January 17, 2003).
7 Decision of the United States District Court for the Eastern District of California, Allan B. Reichard, Petitioner vs. Champion, Respondent. Petition for Temporary Injunction Under Section 10j of the NLRA, (August 22, 2003).
8  Logan, John.  (2002) “‘Union Free’ movement in the USA,” Industrial Relations Journal, vol. 33, no. 3, 2002.
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