Labor Law

by Phaedrus

No Labor Rights, No Freedom, No Democracy

They go hand in hand. A liberal writing at The American Street criticized unions as elitist organizations that had failed in their duty to organize low-wage and, in particular, agricultural workers. Agricultural workers have no protection under US labor law. They are excluded from the Wagner Act. Liberals and everyone else better understand that the fault does not lie in unions, it lies in US labor law which fails to protect a basic human right, the right of free association of workers. Said right is considered, internationally, a major bulwark of freedom and democracy. Welcome to America, land of the sort of free, home of the getting poorer but still brave.

All of the excerpts below come from the Human Rights Watch 2000 report on human rights violations in the US involving labor and the right to organize. The excerpts are lengthy, but if you haven’t had personal experience with this stuff you really need to read the whole report. None of this is news to me, and I know HRW ain’t makin’ it up. I’ve served on a union bargaining committee, I’ve been a shop steward, I’ve taken part in an organizing campaign. I’ve see this bullshit up close.

UNFAIR ADVANTAGE
Workers’ Freedom of Association in the United States
under International Human Rights Standards

Everyone shall have the right to freedom of association with others, including the right to form and join trade unions.
-International Covenant on Civil and Political Rights (ratified by the United States in 1992)

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection.
-National Labor Relations Act (passed by Congress in 1935)

I know the law gives us rights on paper, but where’s the reality?
-Ernest Duval, a worker fired in 1994 for forming and joining a union (speaking in 1999)

According to Prof. Theodore St. Antoine, former dean of the University of Michigan School of Law and president of the National Academy of Arbitrators, the nation’s leading organization of labor-management neutrals, “[t]he intensity of opposition to unionization which is exhibited by American employers has no parallel in the western industrial world.”

[snip]

Reviewing NLRB records, Prof. Paul Weiler at Harvard Law School found that unfair labor practice charges against employers increased by 750 percent between 1957 and 1980, while the number of NLRB elections (a measure of workers’ organizing activity) increased by less than 50 percent.

Research in the 1990s continued examining workers’ right violations in light of domestic legal principles and the original intent of the NLRA. In 1994 a report by Prof. Richard Hurd of Cornell University documented one hundred recent cases of flagrant workers’ rights violations by employers and the failure of U.S. labor law enforcement authorities to remedy the violations. Hurd concluded that “the right to an independent voice for workers has become a mirage.”

The following case is pretty typical. HRW has many other examples.

V. CASE STUDIES OF VIOLATIONS OF WORKERS’ FREEDOM OF ASSOCIATIONAbuses by Management

A complaint issued by the NLRB finding merit in unfair labor practice charges filed by the union tells what happened next. PTP management fired Gilbert Gardner and eight other workers active in the union organizing effort. In addition to the firings, PTP managers and supervisors:

— threatened to close the plant if a majority of workers voted in favor of union representation;

— threatened to move work to Mexico;

— threatened to move the AOL production line to another country;

— threatened that Eveready Battery would pull its business from PTP;

— threatened to fire workers who attended union meetings;

— threatened to fire anyone who joined the union;

— threatened to replace American workers with foreigners if the union came in;

— threatened to transfer workers to dirtier, lower-paying jobs if they supported the union;

— told workers not to take union flyers from union organizers;

— told workers upper management was going to “get them” for supporting the union;

— asked employees to report to management on the activities of union supporters;

— stationed managers and security guards with walkie-talkies to spy on union handbilling and report on workers who accepted flyers;

— interrogated workers about their union sympathies and activities;

— denied wage increases and promotions to workers who supported the union.

Those are all illegal acts by the company, but obtaining judgments from the NLRB and the courts takes years, and then the penalties are puny, a miniscule cost of doing business for the company, far cheaper than allowing a union.

In a national poll, 59 percent of workers said it was likely they would lose favor with their employer if they supported an organizing drive. And 79 percent agreed that it was “very” or “somewhat” likely that “nonunion workers will get fired if they try to organize a union.” Among employed nonunion respondents, 41 percent believed that “it is likely that I will lose my job if I tried to form a union.”

How easy is it to intimidate workers who already believe such stuff? One firing should be plenty, but they usually fire more than that.

A 1997 study by the Secretariat of the North American Commission for Labor Cooperation under NAFTA’s labor side accord reported that employers threaten to close the workplace in half of the organizing campaigns undertaken by workers in the United States, but rarely in Canada or Mexico. Such threats are used even more intensively in U.S. industries where workers feel most vulnerable to shutdowns and relocations. Employers threatened closings in nearly two-thirds of organizing efforts in manufacturing facilities and warehouses.[snip]

Researching workers’ exercise of these rights in different industries, occupations, and regions of the United States to prepare this report, Human Rights Watch found that freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it.

Yep, we sure got a right to organize — on paper. And that’s all.

International human rights law prohibits the use of state power to repress workers’ exercise of their right to freedom of association. Forming and joining unions, bargaining collectively, or exercising the right to strike may not be banned or rendered impotent by force of law. Officially or unofficially, authorities may not harass workers, arrest them, imprison them, or physically abuse or kill them for such activities.Moreover, governments must take affirmative measures to protect workers’ freedom of association. Governments have a responsibility under international law to provide effective recourse and remedies for workers whose rights have been violated by employers. Strong enforcement is required to deter employers from violating workers’ rights.

The failure to affirmatively protect the right to organize is a failure to protect a basic human right under international law.

In the United States, millions of workers are excluded from coverage by laws to protect rights of organizing, bargaining, and striking. For workers who are covered by such laws, recourse for labor rights violations is often delayed to a point where it ceases to provide redress. When they are applied, remedies are weak and often ineffective. In a system replete with all the appearance of legality and due process, workers’ exercise of rights to organize, to bargain, and to strike in the United States has been frustrated by many employers who realize they have little to fear from labor law enforcement through a ponderous, delay-ridden legal system with meager remedial powers.[snip]

In the 1950s such union “density” reached more than 30 percent of the total workforce and nearly 40 percent in the private sector.

Those figures have fallen to around 13% total and less than 9% in the private sector, and not because unions are outdated. Other democracies have not had similar declines. The US drop in union density began with the passage of the Taft-Hartley Act in 1947 over the veto of Harry Truman, who denounced it as a “slave-labor bill”. The effects didn’t show up for some years and were accelerated by the passage of the Landrum-Griffith Act in 1959. The orginal Wagner Act, creating the NLRB, by-de-by, is named for a Republican Senator. Try to imagine a Republican voting for it today.

This is supposed to be government of, by, and for the people. What are the majority of Americans? They’re workers. So how come workers have no real rights in this great “democracy?” What do you call a country that ignores a basic human right? Certainly, authoritarian comes to mind. As does evil/savage/facist/fuck-the-worker land.

(reposted from No Fear of Freedom)

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