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Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.
-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 (still fired and speaking in 1999)
Every day about 135 million people in the United States get up and go to their jobs in service, industry, agriculture, non-profit, government and other sectors of the enormous and complex American economy. Most of them are not business owners, top managers, or highly-paid professionals. Most workers depend on their wages and salaries and on employer-sponsored health insurance, pensions and other benefits for themselves and their families.
Under a wide-angle lens the American economy appears strong. In focus, though, there are alarming signals for Americans concerned about social justice and human rights. A two-tier economy and society are taking shape. Income inequality is at historically high proportions.1 Worker self-organization and collective bargaining, engines of middle-class growth and social solidarity in the century just ended, have reached historically low proportions. Although trade unions halted a declining membership trend in 1999, slightly increasing the absolute number of workers who bargain collectively, the percentage of the workforce represented by unions did not increase.2
Workers' freedom of association is at risk in the United States, with yet untold consequences for societal fairness. This report discusses the unfair advantage in U.S. labor law and practice ceded to employers who violate workers' exercise of the right to freedom of association, and how this imbalance results in the failure of the United States to meet international human rights standards on workers' freedom of association.
International Labor Rights
A widely accepted body of international norms has defined standards for workers' freedom of association. They can be found in the Universal Declaration of Human Rights and other United Nations instruments, in conventions 87 and 98 of the International Labor Organization (ILO), in workers' rights clauses in regional trade agreements like theNorth American Agreement on Labor Cooperation (NAALC), and in other international compacts. All set forth freedom of association and the right to form and join trade unions as fundamental human rights.
The International Covenant on Civil and Political Rights declares: "[E]veryone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests."3 The United States ratified the International Covenant on Civil and Political Rights in 1992. The ICCPR requires ratifying states "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant" and "to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant." The ICCPR also constrains ratifying states "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy."4
In 1998, the United States supported adoption of a landmark ILO Declaration on Fundamental Principles and Rights at Work stating that:
all Members, even if they have not ratified the Conventions in question, have an obligation, arising from the very fact of membership in the Organization, to respect, to promote and to realize, in good faith and in accordance with the Constitution [of the ILO], the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; . . .5
U.S. Labor Law . . .
American workers secured the right to organize, to bargain collectively, and to strike with passage of the National Labor Relations Act of 1935 (NLRA). The NLRA declares a national policy of "full freedom of association" and protects workers' "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 concerted activities for the purpose of collective bargaining or other mutual aid or protection . . ."6
The NLRA makes it unlawful for employers to "interfere with, restrain, or coerce" workers in the exercise of these rights. It creates the National Labor Relations Board (NLRB) to enforce the law by investigating and remedying violations. All these measures comport with international human rights norms regarding workers' freedom of association.
However, some provisions of U.S. law openly conflict with international standards on freedom of association. Millions of workers, including farm workers, household domestic workers, and low-level supervisors are expressly barred from the law's protection of the right to organize. U.S. law allows employers to permanently replace workers who exercise the right to strike, effectively nullifying the right. New forms of employment relationships have created millions of part-time, temporary, subcontracted, and otherwise "atypical" or "contingent" workers whose freedom of association is frustrated by the law's failure to adapt to changes in the economy.
. . . and Practice
Even for workers covered by the NLRA, the reality of U.S. labor law enforcement falls far short of its goals. Many workers who try to form trade unions are spied on, harassed, pressured, threatened, suspended, fired, deported or otherwise victimized in reprisal for their exercise of the right to freedom of association.
A culture of near-impunity has taken shape in much of U.S. labor law and practice. Any employer intent on resisting workers' self-organization can drag out legal proceedings for years, fearing little more than an order to post a written notice in the workplace promising not to repeat unlawful conduct. Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business, well worth it to get rid of organizing leaders and derail workers' organizing efforts.
Private employers are the main agents of abuse. But international human rights law makes governments responsible for protecting vulnerable persons and groups from patterns of abuse by private actors. The United States is failing to meet this responsibility. As noted above, many groups of workers are unprotected by the law. And even when the law is applied for workers who come under its coverage, enervating delays and weak remedies invite continued violations.
1 See Center on Budget and Policy Priorities; Economic Policy Institute, "Pulling Apart: A State-by-State Analysis of Income Trends" (January 2000), showing that the average income of families in the top 20 percent of the income distribution was $137,500, or more than ten times as large as the poorest 20 percent of families, which had an average income of $13,000, and that throughout the 1990s the average real income of high-income families grew by 15 percent, while average income remained the same for the lowest-income families and grew by less than two percent for middle-income families - not enough to make up for the decline in income in the 1980s. See also Richard W. Stevenson, "In a Time of Plenty, The Poor Are Still Poor," New York Times, January 23, 2000, Week in Review, p.3; James Lardner, "The Rich Get Richer" What happens to American society when the gap in wealth and income grows larger?", U.S. News & World Report, February 21, 2000, p.38. 2 In 1999 more than sixteen million workers in the United States belonged to trade unions. For the workforce as a whole, 13.9 percent of all workers and 9.4 percent of private sector workers were union members. While more workers gained union representation by forming new unions than lost it through workplace layoffs and closures in 1999 for the first time in many years, the proportion of the total workforce represented by unions remained unchanged because of employment growth in firms and sectors with less union presence. In the 1950s such union "density" reached more than 30 percent of the total workforce and nearly 40 percent in the private sector. See Frank Swoboda, "Labor Unions See Membership Gains," Washington Post, January 20, 2000, p.E2.
3 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171 (art.22).
4 International Covenant on Civil and Political Rights, Article 2.
5 See ILO Declaration on Fundamental Principles and Rights at Work and Its Follow-Up, adopted by the International Labour Conference at its Eighty-sixth Session, Geneva, 18 June 1998, p. 7. The United States has not ratified ILO conventions 87 and 98, but has accepted international obligations under those instruments.