2012-09-04 "Union Rights Should Be Civil Rights" by Rick Kahlenberg & Moshe Marvit from "Labor Notes"
Richard D. Kahlenberg, a senior fellow at The Century Foundation,
and Moshe Z. Marvit, an employment discrimination and labor attorney,
are co-authors of Why Labor Organizing Should Be a Civil Right.
Labor should borrow from the politics and the legal gains of the civil
rights movement to win a new form of legal protection for the right to
organize on the job. Marchers in Montgomery, Alabama, this year issued
reminders of that movement. Photo: David Bundy, SEIU.
60 years of labor law heavily tilted toward employers, it’s time to
rebalance the scales by making labor organizing a civil right. Rand
Wilson’s proposal for state “just cause” laws is one approach to
reforming the law, but we also need federal legislation and a campaign
that can gain allies outside of unions.
Our proposal takes the
conversation about labor law reform out of the technical and often
confusing arena of labor law and into the realm of civil rights. The
notion of civil rights has a moral grounding that resonates with a far
greater number of Americans than just those in unions.
for labor law reform must be simple and show promise of surviving
intact after a sustained attack by conservative and corporate interests.
A civil rights framework holds that promise because it does not
pit corporations against unions—a fight that is too often
mischaracterized as one between two special interests. A civil rights
approach focuses on the individual and her basic right to be treated as a
human being in the workplace.
Unlike our experience with the
failed Employee Free Choice Act, a debate under these terms is more
difficult for labor’s enemies to mischaracterize. Their opening salvos
indicate they have a hard time crafting a coherent counter-argument. So
far they have responded that civil rights are only for black people,
that the true affront to civil rights is the Davis-Bacon prevailing wage
act, and that the actual civil right is not to join a union!
LAW ON YOUR SIDE -
legislation we propose could be either an amendment to the Civil Rights
Act or stand-alone legislation that parallels it, similar to the Age
Discrimination in Employment Act. Either approach would give workers
powerful benefits and remedies that would dissuade employers from
infringing on workers’ right to organize, while also making whole those
workers who suffer discrimination because of their organizing.
we outline in our new book, Why Labor Organizing Should Be A Civil
Right, workers who suffer discrimination for labor activity would be
allowed to move their cases from the National Labor Relations Board to
federal court. This is similar to the existing right of workers who
suffer job discrimination on gender, race, age, and other grounds to
remove their cases from the Equal Employment Opportunity Commission
(EEOC) to federal court.
The time an employee would have to park
her case at the NLRB would likely be short—perhaps just 30 days—because
in the context of a union organizing drive and election, the six months
that the EEOC makes workers wait would be far too long.
right to be skeptical of entrusting the federal judiciary, which has a
long history of animosity towards labor. But few federal civil cases
ever make it to a judge or jury. Most are settled without a trial—and
the settlement process is a forum for workers to make demands.
INDIVIDUAL AIDS COLLECTIVE -
may see this proposal as a departure from the traditional labor
framework because it shifts the focus from collective rights to
individual rights. We do recast union organizing as an individual civil
right linked to the First Amendment—which fits better politically into
America’s reigning ethos of individualism. But this focus can actually
enhance labor’s collective goals.
During an organizing drive
employers prey on the disproportionately weak position of the individual
worker. Rarely do they discipline or fire every worker, but rather pick
off a few—often the most visible organizers—for discriminatory
This tactic is intended to scare the remaining
employees while asserting the employer’s power, and too often it
succeeds. Civil rights legislation would empower individual employees in
their pursuit of collective action precisely when they are most
vulnerable. The power of each individual worker aggregates to produce
Furthermore, this legislation would give workers a chance to disrupt the employer’s operations.
right to pretrial discovery, which is part of any federal case, may
sound like a technical matter, but anyone who’s participated in
litigation knows that it can put quite a burden on employers.
and managers can be forced to leave work and answer questions under
oath concerning treatment of workers and internal company
communications. Records and emails, financial documents, and
communications with anti-labor consultants can all be demanded for
review, revealing an unadulterated view of the company.
Not only will this information be useful for organizing, but the process will be highly disruptive to the business.
HIT THE POCKETBOOK -
proposal would also provide real remedies for aggrieved workers and
change the calculus for employers considering violating workers’ rights.
Under the National Labor Relations Act, an employer can violate
the law with relative impunity, aside from its own legal fees. When an
employer is found to violate workers’ rights, the most it has to do is
offer reinstatement, post a notice promising not to violate the law
again, and pay back-pay.
Under the Civil Rights Act, however,
victorious employees will be awarded back pay and compensatory damages,
which include pain and suffering, and other real damages that result
from loss of a job. Additionally, the law provides for attorneys’ fees
and for the possibility of punitive damages, which can be as high as
$300,000 per employee. Such penalties will make employers think twice
before violating workers’ rights.
Employers would also have an
incentive to sign a first contract, through a provision that would give
safe haven from punitive damages if the employer either signs a
collective bargaining agreement or submits to binding arbitration.
the slow death of the Employee Free Choice Act in the first years of
President Obama’s administration, the prospects for labor law reform may
seem laughably remote. All the more reason to rethink our strategy now,
before the next opportunity.