Union busting

Following the repeal of the Combination Laws in 1824, workers were no longer prohibited from forming labor organizations or collective bargaining, although significant restrictions remained. In 1832 the Friendly Society of Agricultural Labourers was formed in Dorset to challenge declining wages. The members of the organization agreed to only work for wages greater than a certain amount. In 1834 a landlord complained, and key members were charged and convicted under laws prohibiting the swearing of secret oaths. The sentence of seven years penal transportation to Australia prompted a movement to defend the members, known as the Tolpuddle Martyrs (referring to the village where the organization originated), who were eventually released in 1836 and 1837.[5]

Presently, UK labor laws are defined within the Employment Relations Act 1999 (ERA) and the Trade Union and Labour Relations (Consolidation) Act 1992, and give workers no right to strike. In the UK and EU, trade union opposition may occur during automatic recognition campaigns and ballot elections. Workers in the UK may have union memberships that they retain job to job, potentially resulting in workers for the same employer having different union memberships. When a union is seeking to gain control of the collective bargaining at a place of employment without a ballot, workers with either individual and/or different union memberships working for that same employer may oppose that union.

Consultation is the process by which management and employees (or their representatives) jointly examine and discuss issues of mutual concern. It involves seeking acceptable solutions to problems through an exchange of views and information. Consultation does not remove the right of managers to manage, but it does impose an obligation that the views of employees be sought and considered before decisions are taken. The Advisory, Conciliation and Arbitration Service (ACAS), is the UK government's independent agency for advice and conciliation. Although the Trade Union Congress (TUC) and their member unions oppose the use of consultancies during recognition campaigns, calling it a union busting tactic, ACAS takes a different stance, "Employee communications and consultation are the lifeblood of any business.[6] which "aims to improve organizations and working life through better employment relations".[7]

Derecognition of a trade union, while legal, may be referred to as union busting by trade unions. Derecognition must be accomplished according to statutory guidelines. Workers may derecognize a union which either no longer has support from its members, or if union membership falls below 50%. Employers may derecognize a union if they no longer employ 21 or more workers. If the Central Arbitration Committee (CAC) accepts an application, and the union in question has either lost support or the membership level falls below 50% of the workers, the CAC can declare that a derecognition ballot be held."[8]

One of the most significant cases of mass dismissals in the UK occurred in 2005, involving the termination of over 600 Gate Gourmet workers at Heathrow Airport. Gate Gourmet provides in-flight meals and had been owned by Texas Pacific since 2002. The company had been in talks with the Transport and General Workers' Union (TGWU) over redundancies and changes to overtime pay to try and stem losses when it hired 130 seasonal staff on lower wages than the permanent workers. Seeing this as a threat to their jobs, one shift refused to go back to work. Because this was seen as unofficial strike action, the workers were sacked, reportedly with only three minutes notice.[9][10] The TUC later reported that the dispute had been engineered by the company to allow it to replace staff with workers on worse contracts.[11]

This mass dismissal was viewed by some as a union busting tactic,[12][13] and caused a great deal of media scrutiny. The terminations prompted a walkout by British Airways ground staff that paralysed flights and stranded thousands of travellers in the UK.[13][14] The BBC reported that Andy Cook, Gate Gourmet's director of human resources at the time, said "the company had not been looking to cut the size of the protests, only stop the minority engaged in harassment."[15] Cooke continues to direct labor relations activities from his UK labor relations consultancy.[16]

A deal was brokered between Gate Gourmet and the TGWU by the TUC in September 2005.[17]

History of illegal union firings in the United States

Union busting in the United States dates at least to the 19th century, when a rapid expansion in factories and manufacturing capabilities caused a migration of workers from agricultural work to the mining, manufacturing and transportation industries. Conditions were often unsafe, women worked for lower wages than men, and child labor was rampant. Because employers and governments did little to address these issues, labor movements in the industrialized world were formed to seek better wages, hours, and working conditions. The clashes between labor and management were often adversarial and were deeply affected by wars, economic conditions, government policies, and court proceedings.

Companies may influence unions through bargaining, labor relations, and by other means, but employer-controlled unions in the United States have been outlawed since the National Labor Relations Act of 1935. The act prohibits supervisors from joining unions as well as prohibiting employers from assisting (as in the event of unions competing in the organization of a company), or dominating any labor organization.[18] Additionally, the two laws, passed in 1947 and 1959, respectively, were the Taft–Hartley Act and the Landrum–Griffin Act. These statutes guarantee the rights of private employees to form and join unions in order to bargain collectively. The vast majority of states have extended union rights to public employees.[19] The Chamber of Commerce has a long history of anti-union lobbying and union-busting in the United States at the local and federal level.[20][21][22]

In 1962 US President John F. Kennedy issued Executive Order #10988 [23] which established the right for public sector employees to form unions with certain limitations regarding collective bargaining and a special caveat making it illegal to strike (United States Code: Title 5,7311, U.S.). In 1981 the public sector union PATCO (Professional Air Traffic Controllers Organization) went on strike in violation of Kennedy's executive order. President Reagan exercised his power and fired all the striking members, causing the dissolution of the union. Although the firing was legal, he was criticized by labor organizations for union busting.[24] PATCO reformed to become the National Air Traffic Controllers Association.

In the US, unlike the UK and several other countries, the National Labor Relations Act (NLRA) provides a legally protected right for private sector employees to strike in order to gain better wages, benefits, or working conditions without the threat of termination. However, striking for economic reasons (i.e., protesting workplace conditions or supporting a union's bargaining demands) allows an employer to hire permanent replacements. If hired, the replacement worker can continue in the job, while the striking worker must wait for a vacancy. However, if the strike is due to unfair labor practices, the strikers replaced can demand immediate reinstatement at the end of the strike. If a collective bargaining agreement is in effect, and it contains a "no-strike clause", a strike during the life of the contract could result in the firing of all striking employees, and the dissolution of that union. Although legal, it is viewed by labor organizations as union busting.

Another common tactic is flooding the would be bargaining unit with new workers that are threatened and/or incentivised to avoid discussing the unionisation drive to refuse to sign cards or vote for the union, which can include importing workers with language skills uncommon to the workplace to drive a further wedge between the two sets of employees. Corporate headquarters staff can be assigned to individual units of the business in order to provide significantly increased surveillance of staff with the goal to reduce unionisation efforts and to find sham reasons to write up and fire organisers. These tactics often increase the cost to run the area in question significantly above what the unions would negotiate for but in the long term are viewed as acceptable in order to smash unions and prevent them taking a foothold. In worse case scenarios, entire stores may be closed under the auspices of "safety issues" or "redevelopment" and workers fired or diluted between multiple stores while also serving as a warning to other stores & workers that the company would rather fire them then have to negotiate with a union. In the United States businesses receive little pushback from regulator agencies and when violations are found they are often appealed and eventually dismissed or downplayed by judges, or are insignificantly punishing to prevent the illegal tactics being re-used.

NGG, the German union for restaurant and food workers in 1999 used the notion of union busting to characterize the practices of McDonald's in Germany to kick out employees' representative bodies (Betriebsräte) and to prevent the voting of such representative bodies. However, only the study Union Busting in Deutschland (Union Busting in Germany) by Werner Rügemer and Elmar Wigand introduced the notion and presented an analysis of union busting. The study was commissioned by the largest German union, the metal workers union IG Metall and has been published in 2014.[25]

Rügemer and Wigand also referred in their study to US authors such as John Logan, Kate Bronfenbrenner, Martin Jay Levitt, and Joseph McCain. Subsequently, the authors published a much expanded and updated version in form of a book with the title Die Fertigmacher. Arbeitsunrecht und die professionelle Bekämpfung der Gewerkschaften (Union Busting, Labor Injustice and The Professional Fight Against Trade Unions).[26] After this, the notion union busting is used routinely in the media and by all German unions.

Rügemer and Wigand defined union busting in the following sentences: "Union Busting is the purposeful application and modular combination of practices to prevent employer-independent organization and advocacy in a company. Another point is to prevent (sabotage) the industry. Union Busting is operated both to attack the achieved status quo of collectivity, participation and labor protection. As well as to end organizing efforts of employees already in the initial stage."[27]

Later, Rügemer and Wigand founded the non-profit association Action Against Labour Injustice. The organization works for dependent employees and in particular works-councils.[28] The target group are the people affected by union busting and other forms of work inequalities. The association helps the victims with public actions and by legal. Prominent examples for union busting in Germany are Amazon.com, Birkenstock, Legoland, Haticon, Nora Systems, United Parcel Systems, Charité/Vivantes, Neupack, Edeka, DURA Automotive Systems, Median, Maredo, H&M and OBI.

Derecognition (UK) or decertification (US) of a union may be done lawfully, though these may be referred to as union busting by trade unions, even when it is initiated by members of the union.

Workers in the UK may derecognize a union that no longer has support from members or if union membership falls below 50%. Employers may derecognize a union if they no longer employ 21 or more workers. Generally, in the UK, an application for derecognition must be made to the Central Arbitration Committee (CAC), which declares that a derecognition/decertification ballot election will be held.[8] However a company may decide to unilaterally derecognize, as long as it has a non-CAC recognition agreement in force.[29]

In the US, the process is overseen by the National Labor Relations Board (NLRB). Employees may file a petition seeking a decertification election to determine whether or not the employees wish to retain the union. Like an election petition, a petition for decertification can only be filed during certain timeframes, specifically when a contract has expired or is about to expire.[30]

In Canada all provinces have laws setting out provisions for employees to decertify unions. In most cases the governments have made it mandatory that employers post information for its employees on how to decertify the union.[31]

The International Brotherhood of Teamsters (IBT), as an employer, refused to negotiate in 2011 with a group of its own union organizer employees who voted to form a union called the Federation of Agents and International Representatives (FAIR). On 29 August 2012, after being found guilty of unlawfully union busting their own employees' union, the IBT posted a notice [39] that, according to an agreement approved by a regional director of the Obama administration's NLRB, that they would stop union busting. The notice assures Teamster employees that they will no longer be prevented from exercising their rights.

In an action involving the Retail Clerks International Association (RCIA, a part of the AFL-CIO), they lost their case when the NLRB found that the RCIA violated the NLRA by refusing to bargain with the representative of certain of its employees and by threatening employees with loss of their jobs unless they resigned from the union. The Board further found that the RCIA had violated Section 8(a) (1) by engaging in coercive conduct with respect to certain of its own employees.[40]

In the book Labor Organizations as Employers: Unions Within Unions, the author explored three different unions and the struggle of their workforces to organize. Prompted largely by the same concerns which motivate employees of private and public employers to seek union protection, employees within several unions, the United Transportation Union (UTU), the Garment Workers (ILGWU), and the Textile Workers (TWUA) were thwarted in their attempts to organize.[41][42]

Another recent example of union busting tactics used by one union against the other is the SEIU vs CNA conflict, where each union was battling for the others' members. In a press release dated March 10, 2008 Andy Stern of the SEIU accused the CNA of union busting: "The California Nurses Association has launched an anti-union campaign against nurses and other healthcare employees in Ohio, seeking to derail a three-year effort by the workers to unite in District 1199 of the Service Employees International Union."[43] Central to the SEIU-CNA dispute were accusations by both organizations of raiding each other's members and campaigns, as well as disagreements about the direction of the labor movement. The SEIU is focused in its mission to organize workers at any cost, provoking criticism for its consolidation of smaller locals into mega unions.[44]

Some corporations have sought to learn of union activities by employing informants,[45][46][47] the same way that unions employ salts to infiltrate a non union organization to gather propaganda and sow discord to gain union support. A plant or salt can be used to disrupt meetings, question the legitimacy and motives of either the union or management, and report the results of the meetings to their superiors. Disruption or reporting on union meetings is illegal, but can be difficult to prove in ULP hearings.[48]

In 1980, the author of Confessions of a Union Buster, Martin J. Levitt, reported that he conducted a counter-organizing drive at a nursing home in Sebring, Ohio. He assigned confederates to scratch up cars, then blamed it on the union. Similar activities have not been reported by others, yet Levitt said that creating and exploiting a prolonged climate of fear was key for him destroying the union's credibility.[49]

In the United States, the US Supreme Court has upheld the decision of the National Labor Relations Board that employer espionage or an employer's use of spies or agents within labor unions is an unfair labor practice under the Wagner Act.[50]

Labor consultants, union organizers, and attorneys use rules and regulations to gain control of organizing drives. Most employers oppose union plans for card check elections and employ tactics to insure secret ballot elections instead.[51] If the union focuses on one division of the company, employment lawyers may disrupt such plans and dilute the vote by petitioning the National Labor Relations Board (NLRB) to include other divisions. If the union seeks to include foreman or "junior supervisor" positions in a bargaining unit to increase membership, the definition of what constitutes a supervisor under the NLRA [52] will often be challenged by employment or new staff added to dilute the strength of the organisers. Even the jurisdiction of the NLRB to oversee an organizing drive may be challenged. Delays can turn an organizing campaign into a protracted struggle, and according to Martin J. Levitt such battles are almost always won by management.[53]

Many of the methods for defeating unions have been practiced for a very long time. Harry Wellington Laidler wrote a book in 1913 which reported the use of delaying tactics and provocation by an undercover operative of one of the largest known agencies of the time called Corporations Auxiliary Company. They would tell prospective employers,

Once the union is in the field its members can keep it from growing if they know how, and our man knows how. Meetings can be set far apart. A contract can at once be entered into with the employer, covering a long period, and made very easy in its terms. However, these tactics may not be good, and the union spirit may be so strong that a big organization cannot be prevented. In this case our man turns extremely radical. He asks for unreasonable things and keeps the union embroiled in trouble. If a strike comes, he will be the loudest man in the bunch, and will counsel violence and get somebody in trouble. The result will be that the union will be broken up.[54]

Employers may put pressure on a union by declaring a lockout, a work stoppage in which an employer prevents employees from working until certain conditions are met. A lockout changes the psychological impact of a work stoppage and, if the company possesses information about an impending strike, can be enacted prior to the strike's implementation.[55]