Revised and updated June 20, 2007
Labor activists argue that Congress should pass the Employee Free
Choice Act because employers routinely intimidate and fire workers
who try to unionize. Employers, they claim, have retaliated against
pro-union workers in one-quarter of organizing elections,
discriminating against or firing more than 31,000 workers who
wanted to join a union in 2005. This compares, they contend, to
just 42 cases of union intimidation of workers in the past 60
All these claims are false.
Unions allege that employers systematically violate the law by
threatening and firing workers who want to join a union. Their
proposed solution is the Employee Free Choice Act (EFCA, H.R. 800),
which would replace secret-ballot organizing elections with "card
checks" in which workers join a union by publicly signing a card.
Card check could expose workers to pressure from both employers and
union organizers. Labor activists contend, however, that such union
intimidation is exceedingly rare. Nancy Schiffer, the AFL-CIO's
Associate General Counsel, presents the unions' case:
In one fourth of worker campaigns for collective bargaining,
workers are fired…. Is coercion in the signing of
authorizations a legitimate concern? A recent review of 113 cases
cited by the HR Policy Association as "involving" fraud and
coercion identified only 42 decisions since the Act's inception
that actually found coercion, fraud or misrepresentation in the
signing of union authorization forms. That's less than one case per
year. Compare that to the 31,358 cases in 2005 of illegal firings
and other discrimination against workers for exercising their
federally protected labor law rights.
Other pro-union sources have cited the same figures, but union
activists misrepresent the truth when they make these claims, and
their allegations are refuted by solid National Labor Relations
Companies Respect Employee Rights
First, the claim that companies fire workers in one-quarter of
organizing drives comes from a survey of union organizers, which is
hardly an impartial source.
No less mistaken is the claim that "illegal firings and other
discrimination against workers" occurred 31,358 times in 2005. The
number itself comes from the 2005 annual report of the National
Labor Relations Board (NLRB). The report shows that the NLRB ordered
employers to pay that many workers back pay in 2005, but the NLRB
awards back pay to resolve many types of disputes, very few of
which involve intimidation during organizing. For example, the NLRB
orders companies to provide back pay if they have unilaterally
changed a collective bargaining agreement. Asserting that all of
these cases concern intimidation, fraud, or illegal firings during
organizing campaigns is simply false.
Putting that number in context reveals the absurdity of the
unions' claim. About 149,000 workers were eligible to vote in union
certification elections in 2005. If 31,000 cases of back pay resulted from
employers illegally firing or coercing pro-union workers, then
employers fired or coerced over one-fifth of all workers who
voted on organizing that year, which is a far higher proportion
than even unions assert.
In addition, if a company had illegally fired a worker for
supporting a union during an election campaign, it would be
required to reinstate that worker in addition to providing back
pay. But government records show that reinstatement is far less
common than back pay. The NLRB ordered just 2,008 workers
reinstated in 2005, a number that includes workers who were not
fired during organizing drives.
In short, union activists' claim that employers fired or
discriminated against 31,000 employees for trying to organize in
2005 reflects a complete misunderstanding and misuse of what the
NLRB's data really represent.
In fact, NLRB data reveal that employers rarely fire workers
during organizing drives and that unions win most organizing
elections. Companies improperly fired workers in just 2.7
percent of organizing campaigns in 2005, and unions won 61 percent of
those elections. These facts, not polls of union organizers
or numbers taken out of context, show that most organizing
elections are fair and that companies very rarely take illegal
action against workers who want to join a union.
Union Intimidation a Problem
Conversely, labor activists regularly downplay the possibility
that unions would intimidate workers. They claim that there have
been only 42 cases of forgery or coercion in card-check drives in
the past 60 years. This is false.
This claim originated from union activists' analysis of a Human
Resource Policy Association policy brief on EFCA. The brief
included a list of 113 NLRB decisions involving "union deception
and/or coercion in obtaining authorization card signatures." The activists
found that, of those 113 NLRB cases, only 42 directly concerned
those issues. But that does not mean that there have been only 42
cases of union intimidation in the past 60 years. It means that the
National Labor Relations Board has decided 42 cases concerning
forgery or intimidation in the obtaining of union cards during that
time. These are two different things.
The NLRB is labor law's equivalent of the Supreme Court. Most
cases are decided well before they reach the full board, either in
a settlement or in an administrative law judge's decision. The full
board usually decides cases that involve novel legal issues, not
the routine enforcement of the law. The union argument makes as
much sense as examining 60 years of Supreme Court rulings, finding
42 that involved arson, and then claiming that there have been only
42 cases of arson in the United States during that time.
In fact, union coercion and intimidation are not as rare as
labor activists contend. Thousands of unfair labor practices cases
have been filed against unions since 2000, including 1,417 for
coercive statements, 416 for violence and assaults, 546 for
harassment, and 1,325 for threatening statements. Many of these cases did
not involve election campaigns, and the unions were not found
guilty in every case, but these numbers show that union
intimidation is a real problem that workers face.
Labor activists bend the truth when they argue that workers need
the Employee Free Choice Act because employers regularly fire
workers for organizing. Their claims of mass firings are based on
biased polls of union organizers and the severe misrepresentation
of government statistics. In fact, NLRB data show that employers
rarely fire workers for organizing.
Labor activists further distort the truth when they claim that
there were only 42 cases of union coercion over the past six
decades, because this number refers only to cases decided by the
National Labor Relations Board, which decides very few of the total
number of cases filed. In fact, thousands of charges of unfair
labor practices involving threats, violence, and coercion have been
filed against unions since 2000.
Workers should not lose their fundamental right to vote for or
against unionization in privacy as a result of labor activists'
Sherk is Bradley Fellow in Labor Policy in the Center for Data
Analysis at The Heritage Foundation.
 Testimony of
Nancy Schiffer, AFL-CIO Associate General Counsel, before the
Subcommittee on Health, Employment, Labor, and Pensions, Committee
on Education and Labor, U.S. House of Representatives, February 8,
 See, e.g.,
AFL-CIO Blog, "House Rejects Amendments to the Employee Free Choice
Act," March 1, 2007, at .
Bronfenbrenner, "Uneasy Terrain: The Impact of Capital Mobility on
Workers, Wages and Union Organizing," September 6, 2000, at .
 National Labor Relations Board,
Seventieth Annual Report of the National Labor Relations Board
for the Fiscal Year Ended September 30, 2005, May 1, 2006,
Table 4, at .
Seventieth Annual Report of the National Labor Relations
Board, Table 13.
for Union Facts analysis of unfair labor practice charges against
unions involving section 8(b)(1)(A) of the National Labor Relations
Act using data from the National Labor Relations Board's Electronic
Case Information System. Analysis provided to the author by the
Center for Union Facts. Full results are available from the author