NEWLETTERS

FLASH
September 2000

Shortly after the publication of the latest Sphre News Human Rights Watch issued an important report on freedom of association and the right to bargain in the United States. A summary of that report is provided below. The full report is available on line at http://www.hrw.org/reports/2000/uslabor/

UNFAIR ADVANTAGE

Workers' Freedom of Association in the United States under
International Human Rights Standards

Human Rights Watch

September 2000

EXECUTIVE SUMMARY

Loophole-ridden laws, paralyzing delays, and feeble enforcement have created a culture of impunity in many areas of U.S. labor law and practice. Legal obstacles tilt the playing field so steeply against workers' freedom of association that the United States is in violation of international human rights standards for workers.

Each year thousands of workers in the United States are fired from their jobs or suffer other reprisals for trying to organize unions. Millions of workers are excluded from labor laws meant to protect workers' organizing and bargaining rights, and their number is growing.

Human Rights Watch's  217-page report, "Unfair Advantage: Workers' Freedom of Association in the United States," is based on field research in California, Colorado, Florida, Illinois, Louisiana, New York, North Carolina, Michigan, Washington and other states. HRW examined workers' rights to organize, to bargain collectively, and to strike under international norms and found widespread labor rights violations across regions, industries and employment status.

Workers' rights are recognized in human rights instruments of the United Nations, the International Labor Organization, and other global covenants. The U.S. government has called for "core labor standards," including workers' freedom of association, to be included in the rules of the World Trade Organization and the Free Trade Agreement of the Americas. But U.S. efforts to press other countries to upgrade their labor standards falter when the United States itself violates freedom of association standards by failing to protect workers' right to organize.

Findings

Employers can resist union organizing by dragging out legal proceedings for years. Labor law is so weak that toothless remedies are often seen as a routine cost of doing business, not a deterrent against violations. According to statistics from the National Labor Relations Board (NLRB), the federal agency created to enforce workers' organizing and bargaining rights, the problem is getting worse.

In the 1950's, workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In 1969, the number was more than 6,000. By the 1990's, more than 20,000 workers each year suffered a reprisal or were victims of discrimination that was serious enough for the NLRB to issue a "back-pay" or other remedial order -- nearly 24,000 in 1998, the last year for which official figures are available. Meanwhile, the NLRB's budget and staffing for workers' rights enforcement have stagnated.

Among other conditions that impede workers' freedom of association:

• workers fired for organizing and bargaining often wait years for their cases to be decided by labor boards and courts, while employers pay no price for deliberate delays and frivolous appeals;
• one-sided rules for union organizing unfairly favor employers over workers, allowing such tactics as "captive-audience meetings" where managers predict workplace closures if workers vote for union representation;
• millions of workers including farmworkers, domestic household workers, low-level supervisors,  and "independent" contractors who are really dependent on a single employer are deliberately excluded from labor law coverage for organizing and bargaining rights -- they can be fired with impunity for trying to form a union;
• many workers find themselves caught up in a web of labor contracting and subcontracting, which effectively denies them the right to organize and bargain with employers who hold real power over their jobs and working conditions;
• migrant workers face widespread threats and discrimination if they seek to form unions;
• employers have the legal power to permanently replace workers who exercise the right to strike;
• harsh rules against "secondary boycotts" frustrate worker solidarity efforts.

Recommendations:

The United States must forge a new spirit of commitment to treat workers' exercise of freedom of association as a basic human right, not as a contest between employers and unions' institutional interests. Congress and the Administration should ratify ILO conventions on worker organizing and collective bargaining and strengthen U.S. laws protecting these rights.

Recommended ways to change U.S. labor law and practice include:

• rapid reinstatement and full back pay for workers fired for organizing;
• equal access for workers to hear union representatives' views during representation campaigns;
• stricter scrutiny and tougher remedies against employers who "predict" workplace closures if workers vote in favor of trade union representation;
• faster elections and expedited appeals to resolve unfair labor practices more quickly;
• denial of federal contracts to recidivist labor law violators;
• an end to the statutory exclusion of farmworkers, household domestic workers, and others currently not covered by federal labor laws meant to protect organizing rights;
• responsibility on the part of "prime" contractors to respect workers' organizing and bargaining rights where the prime contractor effectively dominates wage setting and working conditions;
• new protection for immigrant workers who become involved in organizing efforts;
• a change in the striker replacement law allowing temporary, not permanent striker replacements when workers exercise the right to strike;
• amendments to federal labor laws allowing new latitude for solidarity support action among workers in firms doing business with one another.