February 2003

The most basic labor right--the right to organize a union--does not exist in actual fact in many workplaces across the country. During industrialization, some labor activists gave their lives so workers could join unions and get better pay and safer working conditions.

But today the Wagner Act of 1935, which guaranteed this right, might just as well not exist. Employers have turned the clock way back. An astonishing number of them blatantly fire union organizers and otherwise illegally intimidate the work force. The power of the government to police such brazenness is limited, and many employers believe the benefits of breaking the labor laws far outweigh the risks. As a result, millions of workers remain unrepresented and at the mercy of their employers. These conditions are likely to get worse as the Bush Administration stacks the National Labor Relations Board (NLRB).

One company that fired unionists said it would not obey the labor law unless a judge put a gun to its head. That company is Cogburn Healthcare Center of Mobile, Alabama.

The workforce of nurse's aides, housekeepers, kitchen staff, and laundry and maintenance workers was eager for union representation in 1995, recalls Julee Jerkovich, a former organizer with the United Food and Commercial Workers (UFCW), Local 1657. The Cogburn workers gave the union "probably the most overwhelming response I've ever seen from a group of employees," she says. "We had to go back to the car to get more authorization cards because they were pulling them out of our hands."

Wages began at minimum and topped out at around $7 an hour, and "they were offered no health insurance, which was unique in all of Mobile at the time," says Jerkovich.

On top of that, the workers were treated with "a total lack of dignity," she says. "I called it a plantation."

Elaine Collins, a twenty-year nursing assistant with a stellar record, says she was paid $4.35 an hour when she first started working for Cogburn. "When I left there, I was paid $6.35. You could get a Burger King job and make more than that."

On September 27, 2001, the NLRB found that Cogburn had committed "widespread," "coercive," and "egregious" violations of labor law.

"The campaign was absolutely ruthless," says Jerkovich. The company hired off-duty Mobile police officers, in uniform, she says, adding that the police were armed. "On the day of the election, they literally surrounded the building with police officers, which was a very, very chilling thing to come across as a worker in the deep South." (The organizing unit at Cogburn was predominantly African American.)

Collins, a union supporter, says the police were also "standing around in the hallway" inside. "When the vote was over and I walked out, I was so scared."

The company, says Jerkovich, did "everything they could do to terrorize these workers. When some of them wouldn't back down, clearly what they did was start firing them, one by one. They went beyond anything I'd ever seen."

The NLRB decision, which Cogburn is appealing, said the company told its employees they would lose current benefits if they unionized, and it threatened to close the entire facility. It also vowed "not to rehire any employee who engages in protected strike activity."

The company even went so far as to retaliate against workers who testified before the NLRB. Collins "was subpoenaed to testify on behalf of the union," she says. But the day she went back to work after the hearing, "they called me into the office at about quarter to three. They said they had a lot of complaints from family members, staff members, patients."

Collins says management told her to transfer from the dining room to hall work, which requires strenuous lifting. She had done hall work before but had to transfer on a doctor's order after she injured her back. When she protested the new transferal, the company fired her.

A month later, the company wrote a letter, which it read aloud to employees. The letter referred to six fired union supporters. It said, "The only way any of these released employees would come back is for the federal court judge to put a gun to our heads."

Owner Bill Roberts declined to comment because the case is under appeal. But a Wall Street Journal story at the time of the union campaign quoted him as denying allegations that Cogburn management was not listening to employee requests for better wages and benefits.

George Seidenfaden, president of Local 1657, says the legal system does not adequately protect workers. "We should have laws that are strong enough, that have the teeth, to order this company" to respect the right to organize.

"I think about all the years I put in there, and I got treated like this," says Collins, whom Cogburn has not returned to her job. "Right now, I should be there. I should have retirement, and I should have insurance paid for me after twenty years."

Seidenfaden sums up Cogburn's behavior in three words: "the normal tactics."

Union busting is business as usual: 25 percent of companies fire one or more workers for union activity during union campaigns, 75 percent hire on anti-union consultants, 92 percent force employees to attend captive audience meetings, and 52 percent threaten to call the Immigration and Naturalization Service if the union drive involves undocumented immigrants, according to Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing, a 2000 study by Kate Bronfenbrenner, director of labor education research at Cornell University.

Bronfenbrenner also found that, during campaigns, 51 percent of companies directly threaten to close down at least part of their operations if the employees go union, though fewer than 3 percent of those carry through with it.

A second study, this one published by Human Rights Watch in 2000, found that employers were squashing the right to organize. "Human Rights Watch found that freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it," concluded Lance Compa, in "Unfair Advantage: Workers' Freedom of Association in the United States Under International Human Rights Standards."

Last June, Congress held its first hearing about labor organizing in fourteen years. A star of the proceedings was Sherri Bufkin, a former supervisor at Smithfield Foods in Tar Heel, North Carolina. "I'm here to testify today because I want to be able to look my ten-year-old daughter in the eye with a clear conscience," Bufkin began. "Too many days I'd come home from work crying and my daughter would ask, 'Mommy, who did you have to fire today?' I'm here to tell this committee how I terminated employees who didn't deserve to be terminated. I'm here to tell you that Smithfield Foods ordered me to fire employees who supported the union and that the company told me it was either my job or theirs. I'm here because Smithfield Foods asked me to lie on an affidavit [to the NLRB] and made me choose between my job and telling the truth."

Smithfield Foods, Bufkin testified, said that "it would stop at nothing to keep the union out" and the company "remained true to its word." When a Smithfield attorney found out that a worker in Bufkin's section was pro-union, he told her, "Fire the bitch, I'll beat anything she or they throw at me in court," according to Bufkin.

Smithfield Foods says it has a policy of not commenting on litigation.

Mario Vidales, a former food server at the Santa Fe Hotel and Casino in Las Vegas, also testified at the hearing. After the workers there unionized in 1992, the hotel stalled and bullied. "Santa Fe managers carried out a harassment and intimidation campaign against the people who were for the union," Vidales testified. One night, when Vidales was getting off of work, "I saw two cars full of people parked by the exit. . . . As I walked through the parking lot, the two cars suddenly drove up and ten men came out wielding baseball bats. I took on two of them and tried running back to the hotel, but the others came up from behind and hit me in the legs. . . . I was beaten and left for dead. They split my head open and inflicted serious injuries on my entire body and the swelling lasted for weeks. I couldn't work for two months."

In June of 2000, the hotel sold out to a new company that declined to retain the union workers. "We followed the legal process, but the law is a joke," said Vidales.

Senator Edward Kennedy hosted the hearing. Calling illegal employer activity "commonplace," he said, "We should not stand for this."

Another company fired a worker just minutes after hearing he was a union organizer.

Parson & Lusk Inc., is a mechanical, plumbing, and electrical contractor in Bluefield, West Virginia. Dave Shrewsbury went to work for Parson & Lusk in October 2000, and two months later he notified Randy Gombos of Local 33 of the Sheet Metal Workers International Association that he wanted to be a volunteer organizer in the shop. Gombos told Shrewsbury not to do any organizing yet. Then, on December 21, Gombos paid Parson & Lusk a call.

"I took a letter in to the employer saying Dave Shrewsbury is a volunteer organizer," says Gombos. "Well, within five minutes, the employer called Dave Shrewsbury in and fired him. How blatant is that?"

Owner Keith Parson summoned Shrewsbury into a meeting. "He asked me if I knew why I was there," Shrewsbury wrote in an affidavit to the NLRB. ". . . He then told me that he brought me in there 'to fire your ass, your ass is fired. Do you hear me? Fired.' . . . He asked me to fill out my last time sheet, and he wrote me two checks right there. Then, as he handed the checks to me he said, 'There, now you can go to the Labor Board.' I said, 'I do not know anything about the Labor Board.' "
Shortly thereafter, Gombos gave Parson a call, which he recorded legally. What follows is a partial transcript of that call, which Gombos submitted to the NLRB: Parson: I just now fired Dave.
Gombos: For what?

Parson: For, for, for trying to organize my employees. I won't beat around the bush with you about it, uh, Randy, that's just what I did about ten minutes ago.

Gombos: Well, that's illegal, Keith.

Parson: Well, I think you need to let me worry about that. . . .

Gombos: If you fired that man because of organizing, I am going to file charges against you.
Parson: I fired him because of trying to organize my employees, put that on tape, brother.

Gombos: I got it on tape.

According to an affidavit Gombos submitted to the NLRB, the firing had a dissipating effect on the organizing drive. "Since Shrewsbury was fired, I have stopped receiving the calls from people wanting to know about what the union had to offer," Gombos wrote. "They are scared."

The NLRB issued a complaint against Parson & Lusk for firing Shrewsbury, and the company rehired him. The company settled with the union in 2002.

"Ma'am, I don't have any comments to make on that," Keith Parson says when I ask him to address the firing of Shrewsbury.

Yet another company tried to force a union leader out by assigning her work that would put her on disability, the NLRB found.

Alice Keyes, a former sorter at Nortech Waste in Roseville, California, wanted a union back in 1997. The main issue among her fellow workers was safety.

"We were standing on pallets that had holes in them," she says. "You sink right down. You could break an ankle. We were concerned about a lot of things. The heat. Oh, god, when it's 110 outside, it's 130 inside. And when it's cold, it's cold." The sorters were also afraid of getting poked with hypodermic needles, she says.

"Safety is our utmost concern," says Mark Jordan, an attorney for Nortech. "Having said this, I will admit to you that it is an environment that must be monitored very closely. It is our belief that we do that."

In July 1997, Keyes contacted Local 3 of the Operating Engineers. "I was, let's say, the leader of the group because I was the one with the biggest mouth, and I wasn't a-scared of them," she says.
Maybe she should have been. At first, everything seemed to go well. Within two months, the largely Hispanic sorters won the union election.

But then the company installed surveillance cameras and tried to send some workers to the INS.
Imelda Gonzalez was one of them. She started working for Nortech seven years ago, when the company was brand new. She helped bring in the union. "They were treating us bad," she says.
"The rumors had been circulating that if we voted for the union, they were going to fire us," she says, especially the immigrant workers. "There were twenty-five of us in that predicament," and the company told eleven of them "to go into a room right at quitting time." The eleven workers they picked, says Gonzalez, were "all union supporters. The ones they didn't pick out were not union supporters."

When the workers entered the room, says Gonzalez, a manager "told us information had just come to him that their status was illegal and that for that reason we could no longer work there and that this was our last day." The manager "told us to go down to immigration and try to resolve our illegal status. Everyone basically knew what they were trying to do was get us deported." She says the workers were terrified.

After nine days, the plant called the employees back. "When we returned to work we were so scared we thought immigration was going to show up any day," says Gonzalez.

With Keyes, the company took a different tack. On November 28, it suspended her, along with another acknowledged leader in the union, Olga Jara. The two activists got two weeks without pay as punishment for allegedly punching each other's time cards, a charge the workers dispute.

Three weeks after she returned, management informed Keyes that she was not meeting production quotas and transferred her to another line, telling her that she should also work outside picking up trash on the grounds. One of her new assignments was to pull nails out of boards with a hammer. This was onerous because, not long before she began organizing the Nortech workers, Keyes had surgery on her left hand and shoulder, which she had hurt on the job. She had a strained neck and shoulder, tendinitis, and carpal tunnel syndrome.

"I have carpal tunnel in both hands, and they send me outside to pull nails for three months?" she says. "I pulled eight pallets. They went over my head. That's how tall they were--four-to-six-feet tall." Her elbow swelled up till it was three times its normal size, she says.

NLRB administrative law judge James A. Kennedy ruled against the company in 1998, a decision the NLRB upheld in 2001. Jordan, the company's lawyer, says the vote was 2-1 for the union, though the head of the NLRB sided with Nortech. Still, the company decided not to appeal further. "It's not worth the money," says Jordan.

Judge Kennedy's original ruling was stark. "The only reason for the suspensions which were levied on Keyes and Jara were their union activities and/or their concerted protected activities," he found. "At some point a decision was made to take risks with [Keyes's] health. . . . She was directed for a three-month period to pull nails, an entirely unnecessary task. It was clearly make-work. It involved hand and wrist strength, muscular usage which [the company] knew full well was high risk to someone suffering from carpal tunnel syndrome of both hands and who had had recent shoulder surgery."

She was forced to work on "muddy grounds using her hands" to pick up garbage. When she found a broom to make the work easier, she "was told not to use it," Kennedy wrote.

"They were making an example of her," says Richard Marshall, a business agent for Local 3. "Speak up and this will happen to you. It's almost Third World stuff you wouldn't think would go on still in the United States. It does, though."

Why would a company do such a thing? "Once she had been isolated, she was to be assigned work which would cause her to physically break down," Kennedy concluded. "Once that occurred, [the company] would not have to discharge her, she would be forced to leave on disability, and it would be rid of her."

Kennedy ordered the company to "cease and desist from," among other things, "discharging employees to retaliate against them," suspending workers for union activities, isolating employees to prevent them from engaging in protected activities, and assigning union activists to duties that "unreasonably risk injury." He also ordered the company to remove the surveillance cameras it had installed right after the employees unionized.

At Nortech's front office, I meet Tim Morin, the assistant general manager, and request a tour of the plant. Sorry, he says at first, you should have called ahead. But a few minutes later, Morin comes into the parking lot and motions me over.

Morin leads me up some stairs and onto a suspended walkway across from the sorting room. The walkway vibrates. There is a definite smell of ripe refuse. Conveyor belts below and across from us haul long, bright worms of trash. From the walkway, we watch as the sorters grab tree branches, aluminum cans, and other items and toss them into barrels behind them.

Below us is the receiving floor, where individuals and community garbage collectors come to dump their stuff off. On one wall is an enormous pile of crushed, baled paper next to an equally large and glittering stack of baled aluminum. The stacks are almost as tall as our suspended walkway is high. Forklifts and clam-shell loaders criss-cross the floor efficiently, somehow not hitting each other.

Then Morin says that, in order to save me the effort of putting on a hard hat and over-clothes, he will show me the whole thing on camera. In his office, he points to a monitor, which shows the receiving room. The camera's angle and position change every couple of seconds so that the entire room and all the workers there are frequently under the lens. At times, the camera will suddenly highlight a location that was previously visible only at a distance.

I ask Morin if the monitor can show other parts of the plant. Sure, he tells me, punching a button. "I can show you where we were."

But wasn't there a mention in the NLRB order about surveillance cameras? "Yeah," says Morin, "and I might get my hands slapped for showing you this."

The sorters at Nortech Waste have an NLRB decision in their favor, reimbursement for time suspended or laid off, and union representation, but they continue to labor without a contract. That's because the union has backed off. "What happened is, as this process went on and on, we started losing support in there," says Local 3 organizer Frank Rodriguez, noting that the case began about six years ago. "First-time agreements are always hard."

Spend a day with Rodriguez and you will know how a union organizer thinks. Driving through several miles of shopping malls in Roseville, Rodriguez grows animated. "All of this has been put up in the last three years," he says, his voice rushing. "They're going to put 6,000 homes over there." Then he calls my attention to the other side of the highway. "See those slabs? They put them up, boom, boom, boom, boom. You have a building in four months. Our people run those cranes."

For Rodriguez, that's the attraction of mall-land, USA: union jobs. We pass a casino under construction. "We're getting our fair share of the work there," he says. "See those lime-green trucks? They're a signatory to us." Because of all the construction here, he says, union workers have done well.

"I have worked union since I was eighteen years old," he says. "I'm fifty-three now. People who know me say it's my calling." Rodriguez says he has won "every organizing drive" except for one--Nortech.
After the fight with Nortech, the union moved on to campaigns at other workplaces. A contract with Nortech is "not on the front burner," says Bob Miller, vice president of Local 3.

"We won but yet we lost," says Keyes. "It's a total horror story, and I'm still paying for that horror story, I'll tell you."

If things were rough for unions in the 1990s, they're getting rougher under the Bush Administration. In early 2002, it made two recess appointments of anti-labor lawyers to the NLRB. The new board is now made up of three Bush appointees and two holdovers from the Clinton Administration.

"It's now Bush's NLRB," says Compa, author of the Human Rights Watch report. And a Bush NLRB, he says, could make significant rollbacks. "One real danger is the board is going to reconsider the NYU decision" that allowed graduate student teachers at private schools to organize. "They might shoot that down." Doing so would affect graduate students across the country, says Compa.
"Columbia and Brown have held off allowing their students to organize, saying the NLRB is going to revisit the decision."

Cornell's Bronfenbrenner says not only are teaching assistants vulnerable, but so are temporary workers, since the new board may soon revisit an NLRB decision that allowed them to organize in a collective bargaining unit with permanent employees.

William B. Gould IV, chair of the board under the Clinton Administration, left the NLRB in 1998. He is now a law professor at Stanford. Gould worries that the board will seek fewer injunctions against violating companies. And he fears that "innovative remedies"--such as giving "unions access to private property as remedy for employer misconduct" or making employers pay the union attorney fees in egregious cases--"are up for grabs."

Meanwhile, anti-union forces are crowing. "It will be the first time in ten years that Republicans have controlled the NLRB," said the Arizona Employment Law Letter in response to the Bush appointments. "The Clinton-appointed panel was considered by many to be the most pro-union board in recent memory, and those of you who have endured its barrage of employee-friendly decisions are anxiously waiting for the tide to turn."

The problems facing union organizing are far greater than George Bush and a biased NLRB, however. "There's a tendency for Republican Administrations to have more employer-friendly laws," says Compa. But "that's not the decisive factor. The decisive factor is still the employers' usually ruthless opposition to labor organizing and the flaws in our labor-law system that allow them to get away with it."

Employers, says Compa, "have so many weapons at their disposal to frustrate organizing that the amazing thing is that workers still organize."

This article was supported in part by a grant from the Fund for Investigative Journalism.