Modern Union-Bustin’ Tactics

As the Senate considers reforming national labor law, the percentage of American workers in unions continues its long and severe decline. What is causing the downturn, and what is prompting the legislation, is not a decreased need for unions — according to polls, about half of non-supervisory workers want to join one — but that employers are increasingly breaking the law to prevent their workplaces from being unionized.

Fifty years ago, more than 30 percent of private-sector workers were in a union. That share today is 8 percent. Globalization and the new, technology-driven economy have contributed to this decline, but advanced economies in Europe survive these same developments with union coverage rates as high as 80 percent. Much of the falloff is actually the result of illegal, anti-union actions by employers. Our recent analysis of cases brought before the National Labor Relations Board, which oversees union-management relations in most of the private sector, shows that employers illegally fire as many as one in five union organizers.

Actions by the world’s largest employer are a case in point. When butchers at Wal-Mart’s Jacksonville, Texas store joined the United Food and Commercial Workers International Union, Wal-Mart permanently closed its meat-cutting departments, switched to pre-packaged meat, and fired four of the union supporters.

Picking on Wal-Mart is unfair, as much of the business community despises unions. Unions fight for increased wages and benefits, redistributing earnings from employers to workers. Corporate managers, on the other hand, maximize profits for shareholders and hefty compensation packages for those at the top. Compelled by the threat of lower profits, many employers will do whatever it takes to avoid a union workplace.

Not infrequently, this means breaking the law. The National Labor Relations Act makes it illegal to intimidate or fire workers for union activity. Yet, according to our study of data from the National Labor Relations Board, there has been a steep rise in illegal firings of pro-union workers in the last few years. Currently, one in 53 pro-union workers are fired illegally during an election campaign. And employers generally fire the workers who are leading the union organizing activities. If 10 percent of union supporters are actually organizers in their workplace, NLRB data show that about one in five union organizers are illegally fired for their activism.

Interestingly, union membership has actually increased in the public sector. Whereas the private sector — the bulk of the U.S. economy — has seen unionization fall by three-quarters over the last 50 years, public-sector union membership has tripled over the same period, to about 36 percent. Persistent, illegal activity by employers in the private sector explains the disparity. Illegal firings exist in the public sector, of course, but they are less prevalent. Additional civil service protections ensure that firings are more onerous to the government than they are to a private employer. Besides, we should expect less union-busting in the public-sector: there is no profit motive.

President Dwight D. Eisenhower once lambasted union busters, proclaiming that “only a fool would try to deprive working men and women of the right to join the union of their choice.” The fools today are actually quite rational, practicing the cool calculus of costs and benefits.

In a worst-case scenario, the cost of firing a union supporter includes legal proceedings and remuneration to the discharged employee. At a maximum, discharged employees will receive missed earnings minus any income they have earned in the meantime. The total award usually amounts to less than $4,000, a small price to pay to avoid sharing profits with employees through a union-negotiated contract.

Unions are pressing for increased fines and other changes in labor law that reduce the incentives for employer aggression. Without those reforms, it will remain the case that crime really does pay.