right to organize:

Right To Organize

 

Right To Organize

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 1935}

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. {Bill of Rights- First Amendment}

Freedom of association guards an individual’s right to become part of a group for the protection of his or her rights.1 It is an explicit part of the 1st Amendment, stemming from the right to peacefully assemble and petition the government.2 Its foundation is in a case where the state wanted the NAACP to divulge names of its members to the Attorney General. The Supreme Court, recognizing the freedom of association as indispensable to all Americans, unanimously stated “effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association… state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.”3

“It is the freedom of association which creates the possibility for citizens to win other freedoms.”4 The freedom of association is closely linked with the right to organize. The right to organize serves many practical purposes for workers. Workers are better able to negotiate better wages, benefits, and other work-related issues. Yet there is even more to the right to organize than monetary issues.

The NLRA and the OSH Act confirmed that a fully human life requires, among other things, rights to meaningful work; to safe and healthful conditions of work; to pay sufficient to endure a life of human dignity for a worker and his or her family; to form and join labor organizations; and to participate in the workplace decisions affecting their lives.5

It is a human right for employees to have the ability to come together, and strive for the better good in the location where they spend most of their valuable time, the workplace. Workers spend countless hours at the job, yet there is consistently an economic advantage that can be used by the employer to keep in mind. Although the employer has the economic upper hand, workers should still be able to exercise their rights without fear.

The right to organize is preserved in theory by the National Labor Relations Act, but unfortunately not in reality. Many groups of workers, including domestic workers, agricultural workers, managers, and supervisors are excluded from coverage. The workers who are not protected are usually in the worst position, and deserve the law’s refuge.6 They can be fired for trying to organize, or for anything for that matter. A chief feature of union contracts is their “just cause” provision, which makes sure an employer has adequate reasons for firing an employee. Still, employers often delay court proceedings, which always works in their favor. Cases can be drawn out for years, with the final result merely being back pay and a posted notice that they will not disobey the law again. This is a small price for employers to pay when achieving their goal of demolishing an organizing drive and getting rid of union leaders.7 The award granted to a victorious employee is remedial rather than disciplinary. Since most people can not wait for a court case without a job, they obtain another job in the meanwhile. That salary is deducted from the award, leaving an even smaller sum for the employer to pay.8

Unions have a valuable role in workers lives. In 1997, according to the U.S. Department of Labor, union wages were 34% higher than nonunion in comparable jobs.9 Moreover, unions have played a powerful part in creating gains for every person. Labor has led the movement for pension protections, minimum wages, child labor prohibition, and public education for all children.10 Unions thus serve an important purpose in society, acting as virtually the only politically powerful group believing in and advocating for human rights. Since it is not feasible for all of the interests of workers to be legislated, unions are especially essential to achieving gains such as adequate vacation time and sick leave.

Despite the fundamental human rights inherent in the right to organize, some United States laws clash with the International Covenant on Civil and Political Rights. This pact states, “Everyone shall have the right to freedom of association with others, including the rights to form and join trade unions for the protection of his interests.”11 With the right to organize especially pertinent in today’s uncertain environment, its violation is especially disturbing. Employers are able to use the law against their employees, and employees must use their power to prevent further degradation without being afraid. Permanent strike replacements and rights to work laws are just a few of the issues that affect workers in a potentially negative fashion.

The International Covenant on Economic, Social, and Cultural Rights guarantees the right to strike. Permanent strike breakers are a huge threat to every employee. For all practical purposes, legal rights do not protect the employment of a striker. If a strike is for unfair labor practice reasons (employer conduct forbidden by the Act), strikers are granted their job back; if a strike is for economic reasons, an employer is only responsible for rehiring strikers if jobs are available. In MacKay Radio, discrimination in rehiring strikers was the issue before the court. Further, it set the precedent on employees striking over economic issues, and permanent replacements were accepted as a lawful means for employers to operate their business.12 Workers may see employers liberal use of the permanent strike replacement as a severe consequence to striking. A decreasing trend in strikes may be reflective of the intimidation workers feel as unjust, harsh penalties can be utilized if they choose to use that tactic.13

Another way the right to organize is undermined is through right to work laws. Right to work laws bring up the important issue of who should pay for union services. The simplest answer would be that those who use the union services should pay for them. However, right to works, under the pretense of protecting the right to work and the right not to join a union, are no help to workers. Unions are obligated, under the duty of fair representation, to serve those in the bargaining unit who chose not to join the union or even voted against the union. States can, if they so choose, prohibit contracts that order employees to pay a share of the collective bargaining agreement, yet fortunately most states have not done this. After all, it is only fair that those that benefit from the agreement shall pay for it.14 Still, these laws do exist and can be used in an adverse manner against the union. Supporters of right to work laws are not supporters of employee rights. Further, right to work laws hinder union growth by diminishing a union’s funding as well as discouraging union support.

There are certain steps that can be taken to ensure a strong right to organize. Since it is sometimes cheaper for employers to violate the law than to obey it, it is necessary to put a greater cost on violators of the law. In theory, the National Labor Relations Act protects the human rights of workers, yet the Act is set up in an unenforceable way. Section 7 needs to be enforced in a way where it is not advantageous for employers to break the rules. Second, making sure that both sides get a chance to communicate to employees is important, so as to give workers a chance to vote with sufficient information. Lastly, expanding who is covered under the Act is imperative, because presently many workers are excluded for technicalities while they are really in desperate need of protection.15

It is clear that there are a lot of obstacles workers have to overcome to get their voices heard in the workplace. Employee’s views ought to be voiced, and listened to, not only for practical reasons but for the purpose of fulfilling basic human interests which cannot be ignored. A key problem in U.S. labor law is that workers struggles are often categorized as solely economic. According to international human rights expert Lance Compa, “reformulating these activities as human rights that must be respected under international law can begin a process of change.”16 Employees are not using measures such as organization and strikes to capitalize on the profits of their employers. Rather, workers are trying to exercise their force within a system that has continuously left them in an inferior position. Their interests must be recognized as human rights, as opposed to selfish demands, if the right to organize will be as effective as it was meant to be.

ENDNOTES

  1. www.nesl.edu/research/RSGUIDES/FIRSTAM.htm
  2. w3.trib.com/FACT/1st.association.html
  3. www.ernsr.org/legal.association.htm
  4. www.ilo.org/public/english/bureau/inst/papers
  5. Gross, James. Broken Promises of the National Labor Relations Act and the Occupational Safety and Health Act: Conflicting Values and Conceptions of Rights and Justice. Chicago-Kent Law Review 1998. Volume 73:351
  6. Compa, Lance. Unfair Advantage. Human Rights Watch, NY. August 2000. p.54
  7. Compa, Lance. Unfair Advantage p. 10
  8. Compa, Lance. Unfair Advantage p.54, 67
  9. www.uwua.org/newpage22.htm
  10. theunionworker.com/workers/why_uniom.html
  11. www.dol.gov/ilab/public/programs/nao/LanceCompa.htm
  12. NLRB v. MacKay Radio 304 U.S. 333
  13. Summary of Testimony by Franklin Frazier on Trend in the Number of Strikes and Use of Permanent Strike Replacements in the 1980s
  14. State Right to Work Laws, Lewis Maltby
  15. NWI Statement September 8, 1994. Maltby, Lewis
  16. Compa, Lance. www.dol.gov/dol/ilab/public/programs/nao/LanceCompa.htm