Union Numbers Game

The old saying that "figures don't lie but liars figure" comes to mind when you consider what union partisans are doing with numbers to advance their interest in the misnamed "Employee Free Choice Act."

It all began when a union front group, American Rights at Work, issued a report saying that every 23 minutes, a worker is fired or discriminated against for their support of a union. They claim that the figure is "derived from the 1993-2003 NLRB Annual Reports, which indicate an average of 22,633 workers per year were ordered to receive backpay (sic) from their employers."

The unions updated the number for their fight on the "Employee Free Choice Act." They now claim that in 2005 it was 31,358 or one every 17 minutes.

On February 8, 2007 by Nancy Schiffer, Associate General Counsel, AFL-CIO, testifying for the "Employee Free Choice Act" before the Subcommittee on Health, Employment, Labor and Pensions said,

"According to NLRB statistics, in 1969, the number of workers who suffered illegal retaliation for exercising their federal labor law rights was just over 6,000. By the 1990s, more than 20,000 workers each year were victims of discrimination. In 2005, according to the NLRB's Annual Report, 31,358 workers received backpay because of illegal employer discrimination in violation of the National Labor Relations Act - one worker every 17 minutes. Imagine if, instead of firing workers to guarantee a union-free workplace, this many workers were fired to maintain a women-free workplace or a minority-free workplace."

News reports have also featured the 31,358 number. A recent New York Times story includes the following, "Mr. Samuel [AFL-CIO Legislative Director Bill Samuel] pointed to a National Labor Relations Board report that 31,358 workers received back pay in 2005 after their employers were accused of illegally retaliating against them for supporting a union."

The source of the famous 31,358 is the NLRB's 2005 Annual Report. The only place in the entire report where you will find 31,358 is the number of employees who received back pay. You can find the number in Table 4 on page 116.

The trouble is that there are many reasons an employee could receive back pay under NLRB rules and regulations that have nothing to do with being fired or discriminated against for their support of a union.

The most common one would be if a unionized employer refused to bargain or made unilateral changes in working conditions. In other words, if an employer changed the conditions of employment without negotiating with the union. These are what the NLRB refers to as 8(a)(5) cases. According to the NLRB report in 2005, 8,911 of the back pay cases were 8(a)(5) cases and according to a footnote on Table 4 each case can involve more than one employee.

So for example, if an employer unilaterally changed the terms and conditions of employment it would be just one case but it could involve hundreds or even thousands of employees receiving back pay. These 8(a)(5) cases rarely involve an employee being "fired or discriminated against" for union activity.

Other types of 8(a)(5) cases can result in back pay. For example, if a union contract calls for union representatives to be paid for time spent in negotiations and the employer refuses to do this, the union representative can file a complaint and be awarded back pay.

Unilateral changes don't always involve pay but can result in back pay. For example, if an employee who is covered by a union contract is disciplined for drug abuse and the drug abuse policy wasn't negotiated with the union the employee could receive back pay for any time missed because of the discipline.

An analysis of NLRB cases by the Center for Union Facts came to the conclusion that employees were fired for union activity in 1.5 percent of all NLRB election cases in 2005. The NLRB conducted 2,649 union certification elections in 2005 so there may have been as few as 40 people fired for protected union activity. Admittedly, that doesn't cover "discrimination" that didn't involve firing but obviously the unions' claim of 31,358 has no basis in reality.

James Sherk at The Heritage Foundation took a slightly different look at this issue in "The Truth About Improper Firings and Union Intimidation."

The bottom line is that it may be impossible to figure out the exact number from available information but whatever the number is it is a far cry from the 31,358 unions claim.

The AFL-CIO also has a problem being candid about some polling numbers on how many employees want union representation. For more information on this take a look at "Can You Believe Union Polls?"