Management routinely coerces employees not to choose union representation. Freedom of association—the right of employees to join a union and bargain collectively—is theoretically guaranteed by the National Labor Relations Act (NLRA),
the U.S. Constitution, and several international human rights
agreements. However, as Human Rights Watch concluded in a 2000 report
on U.S. compliance with international human rights standards,
employees’ freedom of association in the United States is routinely
violated through employer coercion.1
effective remedies against employer coercion—like injunctive
relief and monetary penalties—in the Employee Free Choice Act will
help restore workers' freedom to form unions.
According to a study by Dr. Kate Bronfenbrenner of
Cornell University, employers illegally fire employees for union activity in at least 34% of all organizing efforts.2
In 1998, roughly 24,000 employees won compensation for being
illegally fired or punished for union activity, up from less than 1,000
in the 1950s and about 6,000 in 1969.
Employees who are not actually fired fear losing their jobs if
they support union representation. In one poll 79% of workers agreed
that workers are “very” or “somewhat” likely to be fired for trying to
organize a union.3
Management forces employees to attend one-on-one anti-union
meetings with their own supervisors in 63% of all organizing efforts.2
54% of employers threaten workers in such meetings.2
Management threatens to cut wages and benefits in 47% of organizing drives.2
57% of employers threaten to close the worksite.2
In 41% of all organizing efforts with a majority of recent immigrants,
employers threaten to call the Immigration and Naturalization Service
Current remedies against employer coercion are ineffective.
The 2000 Human Rights Watch report concluded that protections for
workers’ freedom of association are inadequate under current law, and
that enforcement of current law is much too weak to deter unscrupulous
employers from engaging in illegal conduct.
The NLRA’s penalties against illegal firing of union supporters
are so minimal that employers treat them as a minor cost of doing
business. Employers who illegally fire workers for union activity are
only required to pay back wages minus what the worker has earned in the
meantime—a sum that is often negligible. Moreover, the employer is
usually not required to pay any compensation until years after the
Though virtually cost-free to employers, illegal discharges are
extremely effective in thwarting employees’ efforts to form a union.
Studies show that even when workers are reinstated, they are often so
scarred that they do not resume organizing activities.3 Many report bad treatment from their employer, and most leave their job within a year of reinstatement.
The dramatic increase in illegal firing and discrimination against
union supporters over the past decades is evidence of the
ineffectiveness of current law remedies against employer coercion.
For many other violations, such as illegal threats to close the
workplace or move overseas if employees opt for union representation,
the only remedy is a “cease and desist” order. Employers are simply
required to post a blue and white sign announcing that they have broken
the law—again, usually years after the illegal threats or other illegal
Other coercive employer conduct, such as one-on-one mandatory
meetings with supervisors warning against the dire consequences of
union representation, is perfectly legal under current law.
The Employee Free Choice Act increases penalties for illegal firing of employees.
Monetary penalties must be strong enough to change employer behavior,
and not simply be treated as another cost of doing business.
The Employee Free Choice Act increases the monetary penalty for
illegal discrimination (including discharge) against employees for
union activity. While current law provides for the award only of back
pay to victims of illegal discrimination, the Employee Free Choice Act
provides for the award of three times the amount of back pay.
The stronger monetary penalties apply only to illegal
discrimination that occurs during organizing efforts or during the
period when employees are seeking to negotiate a first contract.
The Employee Free Choice Act levels the playing field with management by giving employees equal access to injunctive relief.
While current remedies for violation of worker rights are exceeding
weak under the NLRA, remedies available to employers are much more
Under current law, the National Labor Relations Board (NLRB)is
required to seek court orders to stop unions from engaging in certain
prohibited activity. If the NLRB has reasonable cause to believe a
union has engaged in such activity, it must seek injunctive relief
against the union in federal district court.
Under current law, employees do not have equal access to such
“mandatory” injunctive relief against employers. Employees may request
the NLRB to seek a court order to stop illegal employer conduct, such
as the firing of union supporters, but these requests are granted only
in rare circumstances.
The Employee Free Choice Act levels the playing field by giving
employees access to the same kind of injunctive relief now available to
A court order putting fired union supporters back to work and
stopping management from firing union sympathizers would be a very
effective tool to prevent management from using intimidation to smother
union organizing efforts.
Under the Employee Free Choice Act, the NLRB must sue for
injunctive relief if it has reasonable cause to believe allegations
that an employer has illegally discharged or otherwise discriminated
against an employee for protected union activity, threatened to
illegally discharge or otherwise discriminate against employees for
protected union activity, or engaged in any other violation of the NLRA
that significantly interferes with employees’ right to
The Employee Free Choice Act’s provisions for equal access to
injunctive relief are limited to violations that occur during
organizing efforts or during the period when employees are seeking to
negotiate a first contract.
The Employee Free Choice Act provides for civil monetary fines to deter other forms of illegal employer conduct.
The Employee Free Choice Act provides for civil fines of up to $20,000
for violations of employees’ statutory right to join a union and
bargain collectively that occur during organizing efforts or during the
period when employees are seeking to negotiate a first contract. Such
violations, for which there are often no effective remedies under
current law, include the following:
Threatening to close the workplace or move overseas if employees opt to form a union.
Switching employees’ shifts, reducing their pay, demoting them, or
giving them inferior work assignments to discourage unionization.
Surveilling or spying on employees who support forming a union.
Prohibiting employees from wearing union buttons.
Illegally firing employees to discourage unionization.
1 Human Rights Watch, “Unfair Advantage: Workers’ Freedom of Association in the United States Under International Human Rights Standards," 2000.
2 Kate Bronfenbrenner, No Holds Barred: The Intensification of Employer Opposition to Organizing, American Rights at Work and Economic Policy Institute, 2009.
3 Brent Garren, “When the Solution Is the Problem: NLRB Remedies and Organizing Drives,” 51 Labor Law Journal 76, 78; 2000.