Dropping the Ax Update: Illegal Firings During Union Election Campaigns, 1951-2007

Dropping the Ax:Illegal Firings During UnionElection Campaigns, 1951-2007

John Schmitt and Ben Zipperer

March 2009

Center for Economic and Policy Research

1611 Connecticut Avenue, NW, Suite 400Washington, D.C. 20009202-293-5380www.cepr.net

Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951-2007

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Contents

Executive Summary.............................................................................................................................1

Introduction..........................................................................................................................................1

The Data and Methodology...............................................................................................................4

The Rise of “Majority Sign-Up” or “Card Check” Organizing Strategies...................................7

Trends in Illegal Firings......................................................................................................................9

Conclusion..........................................................................................................................................15

References...........................................................................................................................................16

Data Appendix...................................................................................................................................18

About the Authors

John Schmitt is a Senior Economist and Ben Zipperer is a Senior Research Associate at the Centerfor Economic and Policy Research, in Washington, D.C.

Acknowledgements

We thank Kris Warner, Rivka Deutsch, Nichole Szembrot, Pranav Vaidya, and Robert Henline forresearch assistance, and Dean Baker, Heather Boushey, Kate Bronfenbrenner, and Liz Chimienti formany helpful comments.

Dropping the Ax: Illegal Firings During Union Election Campaigns, 1951-2007

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Executive Summary

This report uses published data from the National Labor Relations Board (NLRB) to update anindex, first developed by Weiler (1983) in the

Harvard Law Review

and modified by LaLonde andMeltzer (1991) in the

University of Chicago Law Review

, of the probability that a pro-union worker willbe fired in the course of a union election campaign. We use the more conservative LaLonde andMeltzer methodology and also make adjustments for the rise since the mid-1990s in "majority sign-up" or "card check" organizing campaigns.Using the Weiler (1983) and LaLonde and Meltzer (1991) methodology, we find that in the 2000s workers were illegally fired in over 1-in-4 (26 percent) of union election campaigns, up sharply fromabout 16 percent in the late 1990s. In 2007, the most recent year for which data is available, 30percent of union election campaigns had an illegal firing. Pro-union workers faced about a 2.3percent chance of being illegally fired during the course of the campaign. Even after we adjust forthe effect of the rise in majority sign-up organizing campaigns, pro-union workers in 2007 appearedto have a 1.8 percent chance of being illegally fired.If we assume that employers target union organizers and activists, and that union organizers andactivists make up about 10 percent of pro-union workers, our estimates suggest that about one-in-five union organizers or activists can expect to be fired as a result of their activities in a unionelection campaign. Even after we adjust for the increase in organizing campaigns not built aroundNLRB elections, our calculations suggest that more than one-in-seven union organizers and activistsare illegally fired while trying to organize unions at their place of work.Our findings provide significant support for the view that an important part of the decline inprivate-sector unionization rates (the unionization rate in the public sector has remained constantfor three decades) is that aggressive—even illegal—employer behavior has undermined the ability of workers to create unions at their work places. The National Labor Relations Act (NLRA) penaltiesassociated with illegal firings are small: back pay for illegally fired workers

minus

any earnings that workers had after they were fired. Current law has given employers a powerful anti-union strategy:fire one or more prominent pro-union employees—typically workers most involved in organizing the union—with the hope of disrupting the internal workings of the organizing campaign, whileintimidating the rest of the potential bargaining unit in advance of the NLRB-supervised election.

Introduction

The share of U.S. workers in unions has been on the decline for the entire postwar period. In 1948,almost one-in-three workers (31.8 percent) was in a union; by 2008, the fraction had fallen to justone-in-eight (12.4 percent; see

Figure 1

). The drop-off in union membership has been particularly stark in the private sector, where, by 2008, only about one-in-thirteen workers (7.6 percent) wasunionized, whereas more than one-in-three workers in the public sector was unionized.