Everyone has the right to form and to join trade unions for the protection of his interests.
-Universal Declaration of Human Rights (1948)
"Exclusions" from labor law protection affect tens of millions of workers in the United States ranging from farmworkers to college professors. Big chunks of the labor force are defenseless against employer reprisals if they try to exercise freedom of association. If they protest abusive working conditions, employers can fire them with impunity. If they seek to bargain collectively, employers can ignore them. Protection of the right to organize and bargain collectively, a bedrock requirement of international labor rights norms, is denied these workers.
The 1935 Wagner Act, the original NLRA, excluded agricultural workers and domestic workers from its coverage. In the 1947 Taft-Hartley Act, independent contractors and low-level supervisors were added to the list of exclusions in the NLRA. These exclusions run counter to international human rights standards compelling broad protection of workers' freedom of association and relevant comparative international practice.
The Universal Declaration of Human Rights states, "Everyone has the right to freedom of peaceful assembly and association . . . Everyone has the right to form and to join trade unions for the protection of his interests."221 The International Covenant on Civil and Political Rights says, "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."222 The International Covenant on Economic, Social and Cultural Rights urges guarantees for "the right of everyone to form trade unions and join the trade union of his choice . . . for the promotion and protection of his economic and social interests."223
As noted earlier in Chapter III., the United States ratified the ICCPR in 1992 and did not enter any reservations, declarations, or understandings with respect to
Article 22 on freedom of association. The United States signed, but has not ratified,the ICESCR. Signature constitutes a preliminary and general endorsement of the covenant, and creates an obligation to refrain from acts that would defeat the objectives of the covenant, or to take measures to undermine it.
Under ILO Convention No. 87, "Workers . . . without distinction whatsoever shall have the right to establish and . . . join organisations of their own choosing."224 ILO Convention No. 98 says, "Workers shall enjoy adequate protection against acts of anti-union discrimination. . . ."225 More than 100 countries have ratified these two freedom of association conventions, reflecting a solid international consensus. Although the United States has not ratified them, it is bound by them by virtue of its membership in the ILO itself, since these conventions are taken to be of a constitutional nature over and above other conventions.226
Under the ILO's 1998 Declaration on Fundamental Principles and Rights at Work, championed by the United States, all member countries have an obligation, whether or not they have ratified conventions 87 and 98, "to respect, to promote, and to realise 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. . . ."227
On its face, U.S. law is equally comprehensive. The Norris-LaGuardia Act of 1932 excluded no category of worker and stated, "[I]t is necessary that he have full freedom of association, self-organization, and designation of representatives of his own choosing, to negotiate the terms and conditions of his employment, and that he shall be free from the interference, restraint, or coercion of employers of labor. . . ."228 Section 7 of the NLRA stipulates: "Employees shall have the right to self-organization [and] to bargain collectively through representatives of their own choosing. . . ." The NLRB was created to enforce these rights.
However, Congress created enormous exclusions of workers from the legal protection of these rights in the final version of the 1935 Wagner Act and in the 1947 Taft-Hartley amendments to the Wagner Act. Under Section 2 of the NLRA as it now reads, "The term 'employee' . . . shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at hishome, . . . or any individual having the status of an independent contractor, or any individual employed as a supervisor. . . ."229
Under these clauses and related court decisions, workers in all walks of life are excluded from labor law protection. Their employers can fire them with impunity for engaging in concerted activity, including trying to form a union, to bargain collectively, or to strike. They have no labor board or unfair labor practice mechanism they can turn to for redress. These workers include many or all farmworkers, household employees, taxi drivers, college professors, delivery truck drivers, engineers, product sellers and distributors, doctors, nurses, newspaper employees, Indian casino employees, employees labeled "supervisors" and "managers" who may have minimal supervisory or managerial responsibility, and others.
More than three million workers in the United States are excluded from federal law protecting the right to organize because they are "employed as an agricultural laborer."230 Agricultural workers' exclusion under the NLRA was not the result of any argument that warned of undesirable consequences of their coverage under the law. Congress was focusing on industrial strife in the nation's manufacturing sectors and thought of agricultural employment as one or two "hired hands" helping a small family farmer. Although farmworkers were covered in the original drafts of the bill, the exclusion was added without much debate or dissent. There were no hearings devoted to farmworkers' problems.231
Human Rights Watch's research for this report reconfirmed what many previous studies, reports, documentary films and other investigations have found-that farmworkers confront low wages, bad housing, poor health care, workplace hazards, unfair treatment and other abusive conditions on a massive scale.232 Their suffering could begin to be addressed by effective exercise of freedom of association and the right to organize and bargain collectively. Indeed,solving such problems through self-organization and bargaining with employers is the purpose of the NLRA.
Even if the "hired hand" model of farm labor prevailed in the 1930s, it has long since given way to large-scale corporate farming and massive movement of farmworkers by the tens of thousands through the harvest cycles of American agriculture. The continued denial of protection for farmworkers is both an anachronism and a case of U.S. labor law violating international human rights standards requiring protection of all workers' right to freedom of association.
Farmworkers in some states are covered by state laws regulating at least some aspects of organization and collective bargaining.233 California and Arizona, in particular, have created labor boards to handle unfair labor practices, including discriminatory discharge cases. Given the size of these states' agricultural labor force, this softens the overall national effect of the agricultural exclusion under the NLRA. However, farmworker union organizers report that many of the problems that plague the NLRB system, such as employer threats, discriminatory discharges, years of delay, and weak remedies, also afflict California's Agricultural Labor Relations Act and Agricultural Labor Relations Board under state law. They see the Arizona law as openly favoring growers.234
In other states, notably Florida, New Jersey, and Washington, court decisions have affirmed farmworkers' right to organize.235 However, in these and other states with court-created associational rights, there is still no administrative redress enforced by public authorities. Workers must file individual private lawsuits which, as noted above in the Washington State apple workers' case, they are reluctant to do and private attorneys are reluctant to undertake.
In these few states where protection of the right to organize exists under court-made law, the difficulty of mounting a successful lawsuit to vindicate the right makes such protection wholly inadequate. In the vast majority of U.S. states,farmworkers are completely defenseless. They have neither an unfair labor practice claim nor a lawsuit available for recourse when employers fires them for exercising freedom of association.
When it crafted the NLRA in 1935, Congress made a judgment that organizing and collective bargaining did not fit the intimate relationship between a householder and a domestic employee. Like the farmer's hired hand, the domestic worker was perceived by Congress as outside the scope of legislation addressing industrial strife. The reality sixty-five years later is that domestic workers are vulnerable to human rights abuse, and there is a pressing need to provide them the right to organize for their own protection.
Thousands of domestic workers have been brought into the United States by officials of multinational corporations, international organizations, and other elites residing in the United States. Several factors have created a dramatically increasing need for child care and a growing, largely unregulated, labor market for in-home child care, both "on the books" and "off the books." One is the surge of two-income households and single-parent homes in the United States. Another is the emergence of an even more affluent upper class able to afford domestic help. The dispersal of the extended family has made fewer relatives available for child care. In many areas, immigrant women fill this need.
The "graying" of the U.S. population has created parallel growth in elder care in the home. Much of this is provided by agencies who assign workers as "independent contractors" (see below), but many also are hired directly by a family to provide care. In all these settings, many of the child care and elder care providers are immigrant women.
Most European countries have developed special labor law regimes for domestic workers addressing their right of association and providing ways to standardize pay and working conditions through collective representation. But the United States clings to the exclusion of domestic workers from protection of the right to act in association with one another.
In the United States, more than 800,000 officially reported "private household workers" held jobs as domestic employees in 1998. Nearly 30 percent were foreign migrant workers, and the vast majority were women.236 These figures are surely anundercounting: an unknown number of workers also labored as domestics "off the books"-U.S. citizens, workers with non-immigrant or temporary visas, workers with permanent visas or "green cards," and undocumented workers. In all, likely more than one million workers in the United States are maids, cooks, babysitters, cleaners, gardeners, and other domestic employees.
Domestic workers perform devalued household tasks.237 In her role, the domestic worker is often correspondingly devalued. In the most egregious cases of exploitation, employers feel free to create living and working conditions equivalent to indentured servitude. Numerous cases have surfaced of live-in migrant domestic workers-both documented and undocumented-working over one hundred hours per week, from early morning until late at night six or seven days a week with no holidays, receiving compensation far below the national minimum wage if they are paid at all.238
Many domestic workers who have spoken out about their plight say that abusive employers deny them basic telephone privileges, prohibit them from leaving employers' homes unaccompanied, and forbid them to associate or communicatewith friends and neighbors.239 To prevent domestic workers from leaving exploitative employment situations, employers confiscate the workers' passports and threaten them with deportation if they flee.240 In the most severe cases of abuse, migrant domestic workers-both live-in and day workers-have reported instances of sexual assault, physical abuse, and rape.241
Shamela Begum, a Bangladeshi woman, came to New York with a special visa in December 1998 to be employed as a domestic worker by a couple in which the husband was a Bahraini diplomat at the United Nations.242 Begum said that when she arrived in the U.S., her employers immediately confiscated her passport and refused to return it.243 According to Begum, until August 30, 1999, when she was freed through the help of New York City police and local advocates, she labored from approximately 6:00 a.m. until 10:00 p.m. seven days a week caring for the couple's children and performing household duties for the family.244 Begum said that she was paid only $100 per month for the first eight months of her work, money which was not given to her directly but was instead sent to her husband in Bangladesh, and that she was never paid for the remaining duration of her employment.245
Shamela Begum recounted that during her approximately nine months with the couple, she was allowed to leave their high-rise apartment on Manhattan's East Side only twice-both times to accompany the wife to the market.246 Furthermore, shecontended that when the couple vacationed, she was left alone, confined to their apartment with little or no food and no money to buy food.247 According to Begum, throughout her time with the couple, not only was she imprisoned in their apartment and occasionally denied food, but she was also frequently verbally abused and humiliated by them and, on several occasions, was the victim of assault and battery by the wife.248
At nine months, Shamela Begum's suffering was relatively brief. Yeshehareg Teferra, an Ethiopian woman, worked in Silver Spring, Maryland, for eight years for an Ethiopian staff member of the International Monetary Fund. She worked seven days a week, thirteen hours a day with no days off during the eight years. She received total compensation of $1,060 during that time-the equivalent of three cents an hour.249 Teferra said she was ordered not to speak with people outside the family; was required to ask permission prior to leaving the apartment; and was slapped, choked, and verbally abused when she complained of her treatment.250
Hilda Dos Santos was held as a "live-in slave" for nearly twenty years in a suburb of Washington, D.C. by an employer from her native Brazil. She was never paid a salary, was physically assaulted, and was denied medical care for a stomach tumor the size of a soccer ball. Her plight only came to light when neighbors acted at the sight of her tumor, and resulting publicity led to a successful prosecution.251 Dos Santos's case illustrates the difficulty of uncovering such abuses. After twenty years of servitude, she was granted temporary legal status to testify against her employer but was then subject to deportation. An unknown number of similar victims remain silent because exposure means deportation for them, too.252
Domestic Workers' Initiatives in the United States
Whether or not they are enforced, minimum wage laws, overtime laws, and child labor laws apply to most domestic workers in the United States. But if they attempt to form and join a union, or exercise any freedom of association even without the intent of forming a union, they can be summarily threatened, intimidated, or fired with impunity by their employer because of their exclusion from coverage by the NLRA. In contrast, unions of domestic workers have formed in a number of European Union (EU) countries, including France, the United Kingdom, Italy, Spain, and Greece.253
Despite their exclusion from laws protecting the right to organize, some domestic workers in the United States have established local cooperatives and support and advocacy agencies. They seek to improve wages and working conditions of domestic workers by uniting them and educating them about their rights.254 Human Rights Watch spoke with two such groups, Workers' Awaaz (Workers' Voice) and the Unidad Cooperativa de Limpieza de Casa (Unity Cooperative of Housecleaners), both based on Long Island in New York.
Workers' Awaaz was founded in June 1997 as an advocacy group run by and for South Asian women workers, primarily domestics, in Long Island City.255 The group has one paid staff person and consists of approximately fifty members,roughly fifteen of whom are actively involved in organizing and implementing the activities of Workers' Awaaz.0
Workers' Awaaz reaches out to local domestic employees and advocates for their rights in a variety of ways. Its active members set up tables on streets in neighborhoods where a large number of migrant domestic workers live; cooperate with other workers' groups and women's groups to expose the exploitative working conditions of many domestic workers; mount publicity campaigns by placing ads in local newspapers to educate domestic workers about their rights and to put employers who break the law on notice that they might face lawsuits; picket employers known to exploit domestic workers; refer domestic workers with legal claims against their employers to attorneys willing to represent them;1 and join forces with other workers' rights organizations to reach out to injured domestic workers to expose the connection between long hours and health problems.2
The Unidad Cooperativa de Limpieza de Casa, which meets on alternate Sundays at the Workplace Project in Hempstead, New York,3 began functioning in January 1999, after approximately six months of preparation and planning.4 Like other migrant domestic worker cooperatives that have formed across the country in the 1990s, the Unidad Cooperativa is made up primarily of day workers, who have joined forces in response to abusive employment conditions in employers' homes and exploitative terms imposed by employment agencies.
According to Nadia Marín-Molina, executive director of the Workplace Project, employment agencies often charge domestic workers illegal application fees and illegally exorbitant agency placement fees and fail to abide by theminimum wage and hour terms of the Fair Labor Standards Act.5 Marín-Molina described to Human Rights Watch the case of one domestic worker who sought the assistance of the Workplace Project after being forced by her employment agency to clean eleven homes in one day, from 6:00 a.m. until 10:00 p.m., for which she received $50.6 The goal of the cooperative is to ensure that the domestic workers receive a fair wage, undertake only legitimate housecleaning tasks, and have input with regard to when and for whom they labor.7
According to Marín-Molina, the domestic workers "did not see the promise of organizing" because they "feared blacklisting and retaliation" from their employment agencies if they became workers "known to cause problems"8 Marín-Molina noted that through the cooperative, the domestic workers have developed an indirect means of organizing against employment agencies by creating other employment alternatives.9 But as long as these workers are excluded from coverage by laws protecting their right to organize, their efforts can only affect conditions for that tiny percentage of domestics who manage to bypass the temporary agencies and day labor employers.
The 1947 Taft-Hartley Act added exclusions of independent contractors and supervisors to the 1935 Wagner Act's exclusion of agricultural and domestic workers. Under the Taft-Hartley exclusions, employers can appear to delegate a degree of autonomy to employees that they wish to transform into "independent contractors, restructuring their pay as "miscellaneous income" rather than taxable wages. Such maneuvering allows employers to escape many legal and financial obligations-Social Security and other payroll taxes, workers' compensation liability, minimum wage and overtime requirements, and others. Employers can also deny contractors the health insurance, pensions and other benefits that are available to employees.
Not least, employers become free to fire workers classified as independent contractors with legal impunity if they seek to organize. They can also refuse tobargain with workers, even a majority, who are seen as contractors rather than employees.10
Congressional and administrative hearings have produced evidence that many employers deliberately misclassify workers as independent contractors, confident that fear of lost income and the stress of legal action will prevent workers from challenging the decision.11 One study estimated that the number of misclassified workers will exceed five million by the year 2005.12 But U.S. labor law still rests on a model of workers holding permanent jobs with a single employer, rather than adapting to new systems of contracting and subcontracting business relationships.
The Dunlop Commission's 1994 report cited earlier noted what it called "abuses and trends" associated with contracting out for labor:13
C Many public and private employers have subcontracted activities to enterprises that use the same workers part-time performing the same tasks at lower benefits and wage rates.
C In trucking, agriculture, and construction the device of owner-operator has expanded rapidly.14
C Homework and subcontracting have expanded in a number of sewing industries.
C These developments at times result in the avoidance of Social Security taxes, workers' compensation, unemployment insurance and benefits such as health insurance and pensions.
C These arrangements often attract new immigrants, minorities and women in the labor force who have few options.
Misclassification of workers as independent contractors and the resulting legal impediments to freedom of association run the length and depth of the economy. In some cities, building owners have subcontracted cleaning operations to businesses that then turn around and franchise parts of the work to different groups of workers, often those in ethnic immigrant enclaves. As franchisees, these workers are considered independent contractors who cannot bargain for better terms and conditions.15
Many limousine and taxicab drivers are defined as independent contractors, even though they work full-time (indeed, often excessive hours) for a taxi company that owns the medallion or charter, the cars, the dispatching system, and other attributes of an employer. As independent contractors, taxi drivers are excluded from coverage by labor laws that are supposed to protect the right to organize. If they try to form and join a union, they can be fired with impunity by the taxicab company.16
Equally vulnerable are truck drivers who transport cargo from the nation's shipping ports to nearby warehouses for transfer to long-haul delivery trucks. Some 50,000 workers perform this labor. These workers used to be union employees making good wages, benefits and pensions before the deregulation of the trucking industry in the late 1970s. Nearly all of them are now reclassified as independent contractors rather than employees of the cargo firms, even though they are still completely dependent on those firms for their work and their pay. They are paid by the load and often spend hours of unpaid time waiting for cargo to be loaded onto their trucks. As one leading industry periodical puts it, port truck drivers "are the collective low man on the [trucking] industry totem pole."17
Many of these workers are immigrants who scrape together enough money to buy a truck and haul goods from the dock to the warehouse. They often have to do their own loading and unloading. Many say that when they settle accounts forexpenses, income from the cargo firms, and time spent on the job, they earn barely more than the minimum wage.18 One researcher found that "most non-union truckload employees give away their loading and unloading time and waste many unpaid hours-even unpaid days-waiting to load or unload, waiting for dispatch, and waiting on equipment."19 As one worker put it, "We are like slaves. We are like slaves to the big companies."20
While these workers are classified as independent contractors exempt from labor law coverage, many of them in fact have to sign exclusive contracts with trucking firms prohibiting them from selling their services to higher bidders. When companies shift employees to independent contractor status, workers are suddenly more vulnerable to costs they did not face before. For example, truck drivers injured on the job used to be covered by workers' compensation protection as employees. But as independent contractors, they must carry their own insurance, a benefit many forego as too expensive. Meanwhile, trucking firms escape any obligations to maintain workers' compensation insurance for injured drivers.21
Cargo firms have reacted to truckers' efforts to improve pay and conditions by renewed organizing and bargaining with refusals to bargain, blacklisting, and discrimination against organizing leaders. Excluded from coverage by the NLRA, these workers have no recourse. Employers even threaten to sue the workers under antitrust laws, accusing them of price-fixing for their services.22
In the Taft-Hartley Act of 1947, Congress also added supervisors to the list of workers excluded from protection of the right to organize and bargaincollectively. Overseeing even a small portion of just one other employee's time is sufficient to establish supervisory status and exclude a worker from labor law protection.23
Defenders of the new exclusion argued that employees with disciplinary authority over other workers must owe total allegiance to the employer; otherwise, an untenable conflict of interest would result. Critics have responded that the exclusion of supervisors, especially low-level supervisors who themselves often suffer low pay and poor working conditions, is part of a "divide-and-conquer" strategy to weaken workers' bargaining power.24
The supervisory exclusion has had notable impact on workers' freedom of association in the burgeoning health care sector. In an important 1994 decision, the Supreme Court ruled that licensed practical nurses (LPNs) who oversee the work of nurses' aides are supervisors and are unprotected by the NLRA.25 Under the court's ruling, the LPNs could be fired with impunity for protesting their working conditions or seeking to form and join a union.
Nearly one million workers in the United States are LPNs. They are on the bottom rung of the nursing ladder, just above nurses' aides. They are themselves often low-paid, overloaded with patients, and burdened with long hours. These working conditions might be improved through self-organization and collective bargaining. However, health care employers can use the Supreme Court's decision to block LPN organizing and organizing by other health care workers. With an intricate system of state-based licensing of nurses, aides, therapists, technicians and other workers in various grades and classifications defining specific tasks that workers are allowed to perform or prohibited from performing, the health care industry is in a position to create layers of supervisory responsibility that can frustrate and delay workers' organizing efforts.26
Issues arising under the Supreme Court's decision continue to generate litigation and controversy. In an effort to protect nurses who seek to exercise the right to organize, the NLRB has sought to apply Health Care & Retirement Corp. narrowly, not applying the decision against nurses' whose supervisory duties are incidental. Some courts of appeals have supported the board's approach.27 Other circuit courts are unsympathetic and continue to exclude nurses from coverage by the NLRA if they perform any supervisory function. In one recent decision, a federal appeals court overruled the NLRB and nullified an election in which a group of nurses voted 17-4 in favor of representation. The court said that thirteen of the nurses were supervisors.28
In 1974, the Supreme Court expanded the supervisory exclusion in the NLRA to include "managers." In NLRB v. Bell Aerospace, the court found that a group of buyers in the company's purchasing and procurement department were managers excluded from the NLRA's protection. The buyers had no supervisory responsibility and did not manage the enterprise in the common-sense meaning normally associated with "management." However, the court said that they "effectuate management policies" and were thus unprotected by the law.29
The Supreme Court used similar logic to define university faculty members in private universities as managers because of their collegial governance of academic life.30 Although college professors have issues of pay, benefits, workload, fair treatment and other working conditions like any employed persons, some 300,000 of them lack any protection under labor law when they seek to act collectively to address the problems. And even if some professors might be protected by tenure rules from dismissal for organizing, a university administration can rebuff requests by a faculty organization to negotiate over terms and conditions of employment.
Tens of thousands of workers employed at Indian gambling casinos-and likely soon hundreds of thousands, given such casinos' rate of growth-are excluded from NLRB protection. These workers are not excluded because theymeet the "employee" exclusion but because their employers, sovereign Indian nations, are excluded from NLRA jurisdiction under Section 2 as a "political subdivision."31 Based on a Supreme Court ruling interpreting the law, tens of thousands of employees of religious institutions are also excluded from protection, even those whose work has no relation to the religious mission of their institutions.32 Tens of thousands of teaching assistants in universities are also excluded from protection of the right to freedom of association, based on the argument that they are students, not workers, even though they confront workers' problems like salaries, benefits, hours of work, treatment by managers, etc.33
Under international standards, the rights afforded "everyone" or "workers without distinction" apply to most public employees, too. International instruments make limited exceptions, mainly affecting police and military forces and government policymakers. The ICCPR's Article 22, for example, says "[t]his article shall not prevent the imposition of lawful restrictions on members of the armed forces and of the police in the exercise of this right."34 The ICESCR makes the same exception, and adds "[members] . . . of the administration of the state."35 ILO Convention 98 says "[t]his Convention does not deal with the position of public servants engaged in the administration of the State."36
These latter exceptions have been taken to apply to higher-level political appointees, not rank-and-file civil servants. Thus, most public employees come within international human rights standards for organizing and bargaining collectively. Not so under U.S. law. In this respect, the United States stands apartfrom other developed nations and affords less protection even than many poorer, developing countries.
In many U.S. states public employees are denied the right to bargain collectively. North Carolina law specifically prohibits collective bargaining between any state, county or municipal agency and any organization of governmental employees.37 Although it created an exception for local fire and police departments, Texas law declares it to be against public policy for any other state, county or municipal officials to enter into a collective bargaining agreement with a labor organization.38
Virginia holds collective bargaining "contrary to the public policy of Virginia." Indeed, the state Supreme Court ordered a local school board to renounce an agreement with a teachers' organization, something the teachers and the school board had willingly, voluntarily undertaken together.39 Federal government employees, while allowed to form unions, are denied the right to bargain collectively over salaries and benefits. They may only bargain over non-economic terms and conditions.40
Public employees enjoy a type of protection against dismissal for associational activities not available to private sector workers. The First and Fourteenth Amendments of the U.S. Constitution protect public employees' right of association.41 Civil service rules also guard against arbitrary or unjust dismissals. The problem for public workers in states where collective bargaining is prohibited is not so much fear of dismissal for organizing but the futility of an effort to organize. The employer-the state, county, or municipal government-can simply ignore them and their organization.
Public employee unions have had to deal with the roadblock to collective bargaining by engaging in political action-in effect, bargaining with state legislatures. Some have achieved substantial results, and some are still struggling,according to public employee representatives. Much depends on the outcome of elections to state and local office. However, from a human rights perspective, the exercise and protection of fundamental rights should not depend on election results. Respect for workers' rights should be constant, not changing with political winds.
The ILO's Committee on Freedom of Association considered a complaint against the United States involving the many restrictions on public employees' rights to organize and to bargain collectively. The Committee rejected U.S. government arguments that "white collar" employees are "engaged in the administration of the State" and urged the United States to bring its laws regarding federal employees into conformance with Conventions 87 and 98. For state, country and municipal workers whose rights are frustrated, the ILO found that "the situation varies widely between jurisdictions . . . where the legal framework for collective bargaining appears to be reasonably appropriate" and " those states that have no public sector collective bargaining legislation . . . or that ban it completely."42 The Committee called on the United States "to draw the attention of the authorities concerned, and in particular in those jurisdictions where public servants are totally or substantially deprived of collective bargaining rights, to the principle that all public service workers other than those engaged in the administration of the State should enjoy such rights."43
* * * * *
A precise count of workers excluded from labor laws protecting one or more of the elements of the right to freedom of association-the right to organize, the right to bargain collectively, and the right to strike-is impossible to provide. But cumulatively, millions of workers in the United States are affected. They include approximately three million farmworkers, one million domestic employees, many of seven million independent contractors, four million supervisors, and ten million managers; 300,000 college professors, 100,000 Indian casino employees, 500,000 employees of religious institutions, millions of public employees-the list goes on.44
Within each category, fine distinctions would have to be made to quantify precisely who is excluded under the statute, who is excluded under judicial decisions, and who is excluded because of misclassification. In practice, theseissues are resolved in lengthy, complicated proceedings before the NLRB and the federal courts, with attendant delays and frustration of workers' organizing efforts.
Many employees labeled "managers" do not in practice have genuine managerial functions and may desire protection like other workers. Many so-called independent contractors are really dependent contractors with their fate tied to a single employer whose own viability depends on the effort and productivity of these workers. Even after allowing for appropriately excluded categories-true managers and true independent contractors, for example- millions of workers remain exposed under U.S. labor laws to discrimination, dismissal, or other reprisals if they try to organize around basic issues of livelihood and working conditions by exercising the right to freedom of association and related rights to organize, to bargain, and to strike.
Colorado Steelworkers, the Right to Strike and Permanent Replacements in U.S. Labor Law
U.S. labor law lets employers permanently replace workers who exercise the right to strike and allows replacement workers then to vote the union out of existence. No issue arouses as much passion among workers committed to trade unionism. "Just driving around town I look for out-of-state license plates, and I hate that person," a steelworker permanently replaced after nearly thirty years' service in a plant told Human Rights Watch. "I figure he's a replacement worker who took my job."45 A replaced paperworker said, "I still harbor intense hatred for the scabs that descended like rats to steal our jobs . . . I will take that hatred to my grave."46
International human rights and labor rights instruments treat the right to strike in a more nuanced and conditional fashion than the right to organize. Workers must be afforded full freedom to form and join their own organizations. That is really their own affair. But exercising the right to strike implicates other societal interests. Among basic human rights documents, only the International Covenant on Economic, Social and Cultural Rights contains a clause on the right to strike, with the proviso that it be exercised "in conformity with the laws of the particular country."47
Among regional human rights and labor rights bodies, the European Social Charter of 1961 was the first express authorization in an international human rights instrument of the right to strike. That clause stated "It is understood that each Contracting Party may, insofar as it is concerned, regulate the exercise of the right to strike by law, provided that any further restriction that this might place on the right can be justified under the terms of Article 31."48 Article 31 contains a proviso common to many international instruments limiting restrictions on the exercise of specified rights to those "necessary in a democratic society for the protection of the rights and freedoms of others or for the protection of public interest, national security, public health, or morals."49
The European Union's Community Charter of the Fundamental Social Rights of Workers states that "[t]he right to resort to collective action in the event of a conflict of interests shall include the right to strike, subject to the obligations arising under national regulations and collective agreements."50 In Labor Principle 3 of the North American Agreement on Labor Cooperation, the United States and its two NAFTA partners committed themselves to respect the right to strike, defined as "the protection of the right of workers to strike in order to defend their collective interests," without further qualification.51 These regional statements on the right to strike are not binding instruments that supersede national laws, but they express the political will of the countries and reflect at the international level respect for workers' right to strike.
The right to strike is not expressly mentioned in ILO Conventions 87 and 98 or any other ILO convention. But the right to strike has been carefully considered by the ILO's Committee on Freedom of Association and other supervisory bodies for many decades and is now firmly established by the ILO as an essential element of freedom of association. The general principle is that "the right to strike is an intrinsic corollary of the right of association protected by Convention No. 87."52
The ILO recognizes that the right to strike is not an absolute right. It has determined that the right to strike is a legitimate means to defend workers' interestsand that a general prohibition on strikes unduly restricts the right.53 A general prohibition may be justified in a situation of acute national crisis, but only for a limited period and to the extent necessary to meet the requirements of the situation. This means genuine crisis situations such as those arising from serious conflict or natural disasters in which the normal conditions for the functioning of society are absent.54
The committee has articulated the view that the right to strike must be protected and should only be restricted as to military and police forces and in cases which involve essential services or public services implicating public health and safety. Even then, there must be adequate safeguards for workers such as impartial and speedy conciliation and arbitration procedures.55 The ILO has further established that dismissals of strikers on a large scale involve serious risks of abuse and place freedom of association in grave jeopardy.56 These principles are now taken to be essential elements of Conventions 87 and 98 binding, like the conventions themselves, on countries that have not ratified them, including the United States.57
In a 1991 report on a complaint against the United States filed by the AFL-CIO on the permanent-replacement doctrine in U.S. law, the ILO Committee on Freedom of Association concluded:
The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally. The Committee considers that, if a strike is otherwise legal, theuse of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.58
The committee's conclusion is formulated in soft diplomatic language. Under its mandate, it does not "level charges at, or condemn, governments."59 But within this boundary, the ILO's committee on Freedom of Association clearly finds the U.S. permanent-replacement doctrine contrary to the free exercise of trade union rights.
Background: the MacKay Case
The permanent-replacement doctrine was elaborated by the Supreme Court in a 1938 decision not greatly noticed at the time or even for many years afterward.60 Striker replacement was not the issue presented in the Mackay case. It was not among the issues briefed or argued by the parties. The case involved alleged discrimination in the company's refusal to reinstate strike leaders while reinstating other strikers. Indeed, the workers and their union won the Mackay case, with discrimination against the leaders found to be unlawful. In passing, however, the Supreme Court ruled, referring to Section 13 of the NLRA, that "an employer . . . is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places for them." It is on the basis of this "dicta"-the legal term for comments in a court decision not related to the formal holding in a case-that the entire structure of the permanent-replacement doctrine depends. It has never been codified in any statute or regulation, but subsequent court decisions have solidified the doctrine into an established element of U.S. labor law.
The permanent striker-replacement doctrine remained a relatively obscure feature of U.S. law until employers began wielding it more aggressively in the late 1970s and early 1980s. Many analysts attribute this development to President Ronald Reagan's firing and permanent replacement of air traffic controllers in 1981even though, as federal employees, controllers did not come under coverage of the NLRA and the MacKay rule. They were fired as a disciplinary measure under federal legislation barring strikes by federal employees. In fact, the use of permanent replacements began trending upward before Reagan's action.61 But the air traffic controllers' case solidified the force of using permanent replacements to block workers' exercise of the right to strike.62
Unfair Labor Practice Strikes vs. Economic Strikes
The permanent-replacement doctrine makes a distinction between workers who strike over unfair labor practices committed by the employer and those who strike over economic terms and conditions of employment. So-called "unfair labor practice strikers" must be reinstated to their jobs when they end the strike. "Economic strikers," on the other hand, are unprotected. They can be permanently replaced.63 And one year after their strike began, replacement workers can vote to decertify the union and extinguish all bargaining rights.
In practice, the distinction between an unfair labor practice strike and an economic strike fails to protect workers' right to strike. As the ILO Committee on Freedom of Association noted, "that distinction obfuscates the real issue . . . [of] whether United States labour law and jurisprudence (the so-called MacKay doctrine) are in conformity with the freedom of association principles."64
A practical problem in administering the distinction is that workers and employers only find out years after the strike took place, when an appeals court issues a final ruling, whether it was an unfair labor practice strike or an economic strike. Employers using permanent replacements always declare that workers' strikes are economic in motivation. Workers file unfair labor practice charges with the NLRB arguing that their strike was prompted by the employer's unfair labor practices. As the ILO noted in considering the U.S. permanent-replacement case, "a determination of unfair labour practice . . . may take several years until the last appeal option has been exhausted."65 Ultimately, courts decide whether the workers were unfair labor practice strikers or economic strikers. But by then, evenwith a decision in favor or the workers, the strike is often long broken and workers scattered to other jobs.
The Permanent Replacement Threat
The permanent-replacement doctrine is not used only against workers' exercise of the right to strike. Employers aggressively use the threat of permanent replacement in campaigns against workers' efforts to form and join a union and to bargain collectively. In every organizing drive examined by Human Rights Watch for this report, management raised the prospect of permanent replacement in written materials, in captive-audience meetings, and in one-on-one meetings where supervisors spoke with workers under their authority. At Cabana Chips in Detroit, for example, a company letter said that workers
Can be permanently replaced if the strike is for economic reasons (a strike over wages, benefits, or working conditions) . . . Question: Do you mean that non-strikers could be hired to take my job in an economic strike? . . . Answer: YES. Federal law gives the company the right to hire permanent replacements to continue to serve our customers . . . Question: Isn't the company required to fire the replacements when the strike is over? . . . Answer: NO. The company is NOT required to fire the replacements by law. Strikers are only entitled to get their jobs back when and if openings occur.
Cabana management then reproduced a portion of the NLRB's Guide to Basic Law and Procedures underlining a sentence saying strikers can be replaced by their employer, then wrote below, "Remember! `But they can be replaced by their employer'"66 (all emphases in original).
In a similar vein, at Precision Thermoform and Packaging company in Baltimore, Maryland, management told employees in a letter that "the law provides that an employer can CONTINUE TO OPERATE AND HIRE NEW EMPLOYEES TO PERMANENTLY REPLACE THE EMPLOYEES WHO ARE OUT ON STRIKE. If this happens, as it frequently does, the replaced strikers have no jobs to go back to when the strike ends" (emphasis in original).67
Captive-audience meetings and one-on-one sessions with supervisors lay heavy stress on permanent replacements. "They kept talking about how they can get rid of us for good if we ever went on strike," said Robert Atkinson in an interview with Human Rights Watch describing captive-audience meetings at Smithfield Foods' Wilson, N.C. plant in July 1999.
The permanent replacement threat is not only raised in organizing. An industrial relations researcher found that management threatens permanent replacement during collective bargaining negotiations more often than unions threaten to strike.68
The United States is almost alone in the world in allowing permanent replacement of workers who exercise the right to strike. Some of the United States' key trading partners take a polar opposite approach. In Mexico, for example, federal law requires companies to cease operations during a legal strike. Permanent replacements are also prohibited throughout Canada. In Quebec, even temporary striker replacements are banned, and a company may only maintain operations using management and supervisory personnel. In most European countries the law is silent on the subject because permanent replacements are never used and the very idea of permanent replacement of strikers is considered outlandish.
When we asked them to hire new people to give us some relief, they told us they couldn't find qualified workers anywhere in Colorado. But when we went out, suddenly they came up with hundreds of replacements.
-A steelworker permanently replaced when he exercised the right to strike
Along Interstate 25 in southeast Colorado, where the central plains meet the Rocky Mountains, the high smokestacks of Oregon Steel Mills' Pueblo plant loom into view as dramatically as Pike's Peak in the distance. Coloradans know the plant as "CF&I," recalling its origins as the Colorado Fuel & Iron company. CF&I began supplying Western coal and hard rock mining firms with steel products for construction, piping, and rail transport in the late nineteenth century.
South of Pueblo is Ludlow, Colorado, the site of an infamous August 1914 massacre of miners and family members, including eleven children, by mine owners' militiamen. The miners and their families had taken shelter in a tent cityafter mine operators, under orders from John D. Rockefeller, evicted them from company-owned housing when they went on strike in September 1913.69
Today another labor rights crisis besets the area. Oregon Steel permanently replaced more than 1,000 workers who exercised the right to strike in October 1997. Many of the replacements came from outside the Pueblo area, drawn by the company's newspaper advertisements throughout Colorado and neighboring states offering wages of $13-$19 per hour for permanent replacements. A company notice declared, "It is the intent of the Company for every replacement worker hired to mean one less job for the strikers at the conclusion of the strike."70
On December 30, 1997, three months after it began, Oregon Steel workers ended their strike and offered unconditionally to return to work. The company refused to take them back except when vacancies occur after a replacement worker leaves. Hundreds of Oregon Steel workers remained jobless two years later, when Human Rights Watch researched the case. The NLRB issued a complaint finding merit in the workers' claim that the strike was caused by management's unfair labor practices.71
The board's complaint was upheld by an administrative law judge after an eight-month-long hearing on the complaint that began in August 1998 and concluded in March 1999. More than a year after the hearing ended, the judge issued his decision in the case finding the company guilty of interference, coercion, discrimination and bad-faith bargaining.72 But management has already vowed to resist the judge's findings and orders, promising years' more delay in the courts.
"How can the government and Congress allow companies to do this?" asks Lloyd Montiel, a twenty-seven-year veteran of the Oregon Steel plant. "They [the company] can plan a strike, cause a strike, and then get rid of people who gave them a lifetime of work and bring in young guys who never saw the inside of a steel mill."73 "It should not be OK for the company to throw away loyal workers whohave given their lives and their health to the company," says Linda Friend, a registered nurse who cares for retired steel workers in Pueblo.74
Background to the Crisis
Much of the sprawling CF&I mill is silent now. Like many huge, integrated steel companies throughout the United States, the Pueblo plant has shrunk in size since the mid-century heyday of "Big Steel." New steel-making technology, trade competition, open-pit mining that uses trucks instead of rail, a focus on niche products rather than mass production, and other changes have reduced the workforce from over 10,000 in earlier decades to just over 1,000 when Human Rights Watch carried out research into this case.
Despite its smaller size, the Oregon Steel plant is still one of the largest area employers with important "multiplier" effects in the local and regional economy. It has traditionally afforded good wages and benefits to workers under collective bargaining agreements with two local unions of the United Steelworkers of America (USWA). CF&I workers formed their unions decades ago during large-scale organizing drives by the Congress of Industrial Organizations (CIO).
Oregon Steel bought CF&I in 1993 and now calls the facility Rocky Mountain Steel. In a 1993-1997 labor agreement, the USWA agreed to concessions that helped rescue the company from bankruptcy. With profitability restored, workers sought gains in new contract negotiations that began in mid-1997. Two key issues were pension benefits and retirement health insurance, always concerns for workers with long service in a company. With layoffs in previous years taking place by seniority, most of the workers remaining in 1997 were over forty-five years old, and many had well over twenty years of service with the company.
Another vital issue was mandatory overtime. Workers claimed that last-minute compulsory overtime disrupted family life and community involvement like youth league coaching. "I was a widow and a single parent for four and a half years because of forced overtime," said Jan Pacheco, the wife of steel worker Howard Pacheco. "I had to do everything with the house, the kids, their school, teams-everything."75 Herb St. Clair, an employee with thirty-two years of seniority, said, "They pushed me to work seventy-two hours a week. My wife and I were strangers. When we complained, they told us, `If you don't like it, go get a job at Wal-Mart.'"76
Oregon Steel management viewed the workers' proposals as a "surprise" and "exorbitant."77 Worker negotiators saw their pension proposal as one designed "to bring pensions at Oregon Steel up to a level common in the steel industry."78
These and other issues were unresolved when the strike began on October 3, 1997. But by that time, massive unfair labor practices had taken place during bargaining. According to the findings of a meticulously documented 111-page decision by the administrative law judge who heard evidence in the case, Oregon Steel management's unfair labor practices before the strike began included:79
C spying on a union meeting where bargaining strategies were discussed;
C threatening to close the plant if workers exercised the right to strike;
C threatening to revoke its contract offer if workers exercised the right to strike;
C threatening to close the plant and "reopen non-union in thirty days " if workers struck (as one supervisor said, "Well, I wish you guys would straighten this thing out because Joe's (Joe Corvin, President of Oregon Steel Mills) is going to shut this place down and bring it back nonunion");
C threatening to fire workers if they participated in a strike;
C assigning undesirable, dirty jobs cleaning arc furnaces and cooling towers to union supporters because of their support for the union;
C telling workers if they participated in a strike they would never work for Oregon Steel again (as one supervisor said, "I guaran-f---ing-tee you guys will never be hired back again");80
C threatening to "bust" the union if workers struck (as one witness testified, a supervisor said, "within 15 minutes they would have two bus loads of people in the mill to do our jobs and the union would no longer exist");
C promising promotions to workers if they would not support the union during a strike;
C refusing to provide relevant information to the union on 401(k) and other retirement pay and benefit plans.
The judge further determined that after the strike began on October 3, 1997, Oregon Steel management launched a new round of unfair labor practices against workers:
C unlawfully hiring permanent replacements;
C unlawfully refusing to reinstate workers when they ended the strike;
C unlawfully denying workers access to loans from their 401(k) plans by imposing a new requirement that loan repayment must be through payroll deductions (obviously impossible if workers were on strike), when before the strike no such requirement was in place and workers could repay loans from bank accounts or by other payment methods;
C unlawfully revoking its contract proposal to the union after the strike began;
C unlawfully implementing its final offer without having bargained in good faith.
In all, said the judge, Oregon Steel's unfair labor practices "were substantial and antithetical to good faith bargaining."81
Even before the judge's ruling, Oregon Steel management had already declared it would not honor it. Company president Joe Corvin called the NLRB "one of the most political of federal agencies" and said "the federal courts will review the facts and law in this case and for that we are not only thankful, butoptimistic . . . [T]he NLRB complaint is just the first step in a lengthy process which will not be concluded for several years."82
When the judge's decision was issued, Oregon Steel refused to accept it.83 "We're looking at years and years of hearings before there's any conclusion to this," declared a company spokesperson.84 The spokesperson added, "The company will continue to operate as before the decision."85 A company attorney said , "[T]his decision is no more a victory for the union than was the issuance of a complaint in the first place or the beginning of the trial."86
It can indeed take several years for the labor board and the courts to establish that Oregon Steel committed unfair labor practices requiring workers' reinstatement, as the administrative judge ruled, rather than an economic strike allowing management to permanently replace them. In the meantime, union and company attorneys, NLRB staffers, Oregon Steel managers and hundreds of replacement workers are employed and making a living while hundreds of workers who exercised a right guaranteed under international human rights standards and under U.S. law have lost their jobs, lack medical insurance and pension contributions, and cannot provide for their families' welfare as they did before.
Joel Buchanan, a worker with twenty-nine years in the Oregon Steel plant, told Human Rights Watch, "I didn't know the company could do permanent replacements until we ended the strike and offered to go back [on December 30, 1998]. I know the union explained it, but it still didn't seem possible. Before the strike the company was pushing us for forced overtime. When we asked them to hire new people to give us some relief, they told us they couldn't find qualified workers anywhere in Colorado. But when we went out, suddenly they came up with hundreds of replacements."87
Conditions for replacement workers have come under scrutiny. Two workers have suffered fatal accidents since management replaced those who exercised the right to strike. Another worker lost both arms in a separate accident. The mostrecent fatality prompted an unprecedented plant-wide safety inspection by the federal Occupational Safety and Health Administration, which normally inspects only areas where a fatal accident occurred.88
One of the harshest results of the permanent-replacement doctrine is the breach it causes in the community. Human Rights Watch spoke with a group of Oregon Steel workers who articulated this phenomenon. Ken Louis, a twenty-nine years' service worker, said, "Permanent replacements are turning this city into an `I hate my neighbor' attitude." Mike Rodriguez told Human Rights Watch, "Just driving around town I look for out-of-state license plates and I hate that person. I figure he's a replacement worker who took my job. I don't trust people the way I used to." Paul Cruz said, "My neighbor's grandson went in and took a job. I couldn't go to my neighbor's funeral when he died, knowing his grandson would be there." "It will take generations to repair the damage," said Jan Pacheco.89
Maine Paper Workers
In 1998, Julius Getman, a prominent labor law expert, published an exhaustive study of another major strike that featured permanent replacements. The strike and permanent replacement of workers at International Paper Company's Androscoggin Mill in Jay, Maine, showed the same dynamics of broken faith in the law and community ruptures. "I was naive," said Randy Berry of Local 14 of the United Paperworkers Union, whose members exercised the right to strike at International Paper in June 1987. "I figured as blatant as they were, the Labor Board would have to see our side."90
Commenting on the strike, legal analysts brought to life the stakes for workers who are permanently replaced:
[F]or employees who may have spent twenty years with the company building up a stake of experience and seniority that can rarely be duplicated elsewhere, the stark reality is that if they do go on strike, they can be replaced by the company with people who in less than twenty minutes on the job gain permanent priority over the striking veterans. As the Jay paperworkers learned to their regret, the Supreme Courtpictures a strike not as a protected right, but as a gamble with one's job-the most valuable asset that most employees possess.91
Within three months International Paper management permanently replaced 1,200 strikers. In October 1988, workers ended their strike, but permanent replacements remained on the job. Maurice Poulin, an International Paper worker whose grandfather, father, brothers and sons had worked at the plant, found it "unbelievable that a company would forget all this service of lifetimes and replace all of us with one swipe . . . It's almost like we had our own holocaust. . . ."92 In local schools, physical confrontation and mutual taunting took place between the children of strikers and the children of replacement workers.93
Summing up the aftermath of the strike years later, a striker who lost his job after thirty-five years as a papermaker said, "I still harbor intense hatred for IP and the scabs that descended like rats to steal our jobs when we left the mill. I will take that hatred to my grave. There have been suicides, early deaths, divorces, alcoholism, broken families, lost homes, and who knows what else. Thank God there were no murders."94
Arizona Copper Miners
Another comprehensive, book-length treatment by Jonathan D. Rosenblum, then a journalist and later an attorney and advisor to the International Labor Organization, examined another use of permanent replacements by a major firm. This case is cited here because it was the first major strike broken under the permanent-replacement doctrine in the early 1980s, an action credited with emboldening other employers to permanently replace workers who exercise the right to strike.95
In June 1983 at Phelps-Dodge Corporation's copper mines in Morenci, Bisbee, Ajo and Douglas, Arizona, 1,200 miners belonging to the steelworkers union went on strike. In August, the company began hiring permanent replacements, protected by the mobilization of several hundred state troopers and national guardsmen. In an NLRB vote in October 1984, replacement workers decertified the union.
Rosenblum's account provides insights into the effects of the permanent-replacement doctrine both on workers' rights and on family and community ties. For example, one brother speaks about another who crossed the picket line: "When my dad ended up in the hospital, there we were-two sons in the same room-but we didn't talk to each other. At Christmas we would see my mom and stay on separate sides of the room. We were like strangers."96 The brothers were reunited only when a third brother, a supervisor at the plant, was killed in a workplace accident attributed by workers to strikebreakers' inexperience.
Describing her reaction when a son-in-law took a job during the strike, a striker's mother said, "After our son-in-law went to work we never saw our daughter, never saw our grandkids, never saw our son-in-law. This is a very close-knit place. If we would see them in the J.C. Penney, they would run off. If I was in the meat department and she saw me, she would go to the vegetables so she wouldn't have to face me eye-to-eye."97
The dispute ran over to local churches. Most of the strikers were Mexican-American Catholics, and many of the replacements were Mormons. Striking workers charged that Mormon leaders were encouraging strikebreaking. Some Mormon church members confirmed that church leaders counseled going to work at Phelps-Dodge during the strike.98
A Catholic church had to establish two lines for communion, one for strikers and one for replacements. One woman left the church, telling the pastor she "couldn't understand how strikebreakers could come to church praying the same prayers and to the same God while taking away her husband's and her friends' jobs."99 As an example of harsh sentiments, Rosenblum reports: "Entering and leaving the mine gate, the strikebreakers began a ritual of waving paychecks and flicking pennies at the strikers."100 For their part, the strikers' cause wasundermined by an incident of a shot fired into a strikebreaker's home, wounding his three-year-old daughter.101
Jonathan Rosenblum's investigation of the Phelps-Dodge strike uncovered important information about possible unlawful conduct by management during the strike. However, it came too late to help the workers. In a 1986 decision, the NLRB appointed by President Reagan rejected appeals by the workers and ruled that they undertook an economic strike, not an unfair labor practice strike.
In a 1990 interview, company president Richard Moolick told Rosenblum that as of August 1983, "`I had decided to break the union.'" This is significant because Phelps-Dodge was under a continuing legal obligation in August 1983 to bargain in good faith with workers on issues giving rise to the strike. Moolick's admission of a decision to "break" the union when he was obligated to bargain with the union evinces an unlawful refusal to bargain in violation of Section 8(a)(5) of the NLRA. In an interview shortly before his death, John Boland, who served as Phelps-Dodge's attorney in the strike, told Rosenblum, "`You must keep in mind that dear to the heart of Moolick was to get rid of the unions . . . I'm sure that the decisions by Moolick as the strike progressed were influenced by his long-range decision to obtain a union-free shop. In other words, if a decision is doubtful about `do this or don't do this'-and the possibility of ultimately getting rid of the union was a factor anywhere in there-why that's the one he'd choose.'"102
Rosenblum quotes Moolick as telling him: "`I was born with the thought that you could walk through a picket line. Nobody can keep you out. You walk through.'"103 Speaking of the union at Phelps-Dodge, he added, "`The first time I sat at a bargaining table there were some card-carrying commies on their side. To me it was an affront to sit across from a goddamned commie.'"104
Tangentially, Richard Moolick resurfaced in the Oregon Steel strike in Pueblo in 1999-fifteen years after the strike at Phelps-Dodge. Now retired, Moolick heads a mining museum in Leadville, Colorado. In an April 5, 1999 letter to Joe Corvin, the president of Oregon Steel, Moolick sought a $5,000 contribution to his museum. He supported his request by declaring, "In 1997 I supplied [Pueblo plant manager] Mike Buckentin with the game plan he used so successfully in combating the Steel Workers at CF&I in Pueblo." He added, "In 1983 I took on the Steelworkers coalition at the Phelps-Dodge properties in Arizona and Texas andwas successful in breaking some 35 unions." Responding to the appeal, Oregon Steel contributed $5,000 to Moolick's museum.105
Workers in Other Major Strikes
The Phelps-Dodge, International Paper and Oregon Steel strikes are only three of many cases of national importance where the permanent-replacement doctrine was used to frustrate workers' exercise of the right to strike in recent years. More than 6,000 Greyhound Corporation bus drivers were permanently replaced in a 1990 strike.106 In response to a United Auto Workers strike in 1992, Caterpillar Corporation threatened to bring in permanent replacements. Workers ended the strike. But the company's move also ended a thriving program of labor-management cooperation that had taken shape with gains for both parties. Years of unfair labor practice disputes and a poisoned atmosphere of labor-management relations have followed.107
In Charlotte, North Carolina, 1,450 workers were permanently replaced at the Continental General Tire factory in a 1998 strike. The company was owned by Continental AG, a German-based multinational corporation. When asked why he treats U.S. workers in ways he would never consider in Germany, CEO BerndFrangenberg declared, "It's a different culture with different relationships. This country is different. The labor laws are different."108
Indeed, the United States is practically alone in the world with its permanent striker replacement policy, despite growing sentiment in favor of changing this aspect of U.S. labor law. In 1991, for example, the House of Representatives passed legislation to prohibit the hiring of permanent replacements in most strike situations. A companion bill in the Senate gathered majority support, but fell under the weight of a filibuster. The Clinton administration in 1995 issued an executive order authorizing denial of federal contracts to firms that permanently replaced economic strikers.109 A federal appeals court struck down the order for exceeding the executive's authority, concluding that it "is pre-empted by the NLRA which guarantees the right to hire permanent replacements."110
Human Rights Implications
The Oregon Steel case and others like it, where workers are permanently replaced when they exercise the right to strike, embody a fundamental breach of the principle of freedom of association and the related right to strike. The permanence in what the ILO diplomatically calls "the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period" contravenes international labor rights principles, with its inherently aggressive, intimidating use both against workers who face replacement and as a threat against all workers seeking to exercise rights of association, organizing, and bargaining.
Workers' freedom of association does not abide abstractly in human rights instruments or national laws. Exercising the right only has meaning in a real world of sometimes converging, sometimes clashing interests among workers, employers, governments and other forces in society. Where workers have formed a union, exercise of the right to freedom of association is not static or episodic. It is rooted in a relationship over time between two parties. The relationship includes the possibility of occasional strikes by workers or lockouts by management.
The exercise of economic strength by workers or employers to back up proposals in bargaining is a normal, natural, and accepted right of unions and management. The anticipated sacrifice and pain of economic action propel parties toward compromise. This is why most labor negotiations end in a settlement without a strike.
As noted earlier, employers have many options for continuing operations during a strike. Most obviously, in addition to using managers and supervisors to maintain activity, employers can hire temporary replacements. Indeed, most strikes that include the use of replacement workers involve temporary, not permanent replacements, and strikes with temporary replacements are shorter in duration than those with permanent replacements.111
A collective bargaining relationship is not indissoluble. Companies close facilities. Workers sometimes choose to substitute a new union for one they are dissatisfied with, or to decertify a union altogether. But as a rule the collective bargaining relationship is a sustained one. Parties in this relationship accept that in the course of collective bargaining they might resort to economic action through a strike or lockout-a realization that creates a powerful force for resolving their differences through mutual agreement.
This basis for coexistence and compromise is recognized as beneficial to the parties and beneficial to society, compared with the alternatives of government control or of unilateral employer power to set employment terms when workers desire representation.112 But this basis of mutuality is destroyed when employers can seize on workers' exercise of the right to strike as an opportunity to permanently take away their jobs. Workers' exercise of the right to freedom of association and related rights to organize, to bargain collectively and to strike can only be upheld when a balance of rights and interests is forged. Permanent replacement crosses the line by creating an imbalance between the rights of the conflicting parties.
Worker Solidarity and Secondary Boycotts
Workers' right to freedom of association is not limited to the single workplace. They often seek to associate with other workers of the same employer. For example, members of the automobile workers' union have formed a single organization to bargain with large nationwide companies like Ford Motor Co. and General Motors Corp. Members of several different unions-electrical workers, auto workers, steel workers and others-have banded together to bargain with General Electric Co. Beyond that, workers sometimes come together to deal with coalitions of employers, as hospital workers in New York bargain with a single employers' group representing several hospitals.
Such company-wide or industry-wide bargaining relationships are legal under U.S. law. But the situation changes dramatically-in sharp contrast to workers' rights in other countries and contrary to international labor rights norms-when workers seek to associate with employees in other companies with which their employer has a supplier or customer relationship. What workers see as solidarity, U.S. labor law defines as illegal "secondary boycotts."113
Freedom of association among workers of different employers, seen as labor solidarity by worker advocates, is severely restricted under U.S. law. Before the ban on secondary boycotts was enacted in 1947, workers could request help from counterparts at other companies. That is, workers involved in a dispute with a "primary" employer could ask workers at "secondary" employers to press their own (secondary) company to curtail business with the primary firm. Now such appeals are prohibited.
A secondary company that continues doing business like selling or purchasing goods and services from a primary firm involved in a labor dispute is helping that primary firm to prevail in the dispute with its workers. However, primary firm workers involved in a labor dispute are not permitted correspondingly to seek help from workers at the secondary company. Moreover, workers at the secondary company may not take action of their own volition to help workers in the primary dispute. Among workers, both appealing for help and offering help are strictly prohibited, while employers can continue doing business with each other as if no dispute existed.
The ban on workers' solidarity is backed up by strict, mandatory injunction requirements and punitive sanctions. These sanctions are harsher than any visited on employers for violating workers' rights, and they are more aggressively enforced.
Under Section 10(l) of the NLRA, the NLRB must seek an immediate injunction to halt an appeal, an offer, or an act of secondary action. Workers' organizations are liable for payment of financial damages for a company's economic losses due to solidarity action.
In contrast to mandatory injunctions against workers' solidarity under Section 10(l), Section 10(j) of the NLRA authorizes only discretionary seeking of injunctions to halt employers' unfair labor practices like firing worker leaders or refusing to bargain in good faith, however egregious and destructive of workers' freedom of association they might be. In further contrast, employers face no punitive measures for violating workers' rights. The only recourse is usually an order to reinstate a fired worker, or an order to bargain with workers' chosenrepresentative, with no further assurance that workers' rights are vindicated or that employer violations are deterred.
In recent years the NLRB has increased its use of 10(j) proceedings for workers from an almost-never to a rare frequency. In 1998, fewer than fifty 10(j) injunctions were sought on workers' behalf-a drop in a sea of some 10,000 meritorious unfair labor practice cases.114 But even fewer 10(l) injunctions were sought, because the ban on workers' solidarity action is so absolute and the punishment is so swift and resolute that workers rarely test the law's harsh strictures.115
The U.S. prohibition on solidarity action contrasts sharply with practice of most other countries and runs counter to principles developed by the ILO's Committee on Freedom of Association over many decades of treating cases under Conventions 87 and 98. For example, Japanese labor law contains no prohibition on worker solidarity appeals or action comparable to Section 8(b)(4) of the NLRA. In fact, Japanese labor law proscribes only employer unfair labor practices, tracking the language of Section 8(a) of the NLRA.116 The only union economic action affirmatively constrained under Japanese labor law involves a narrow issue of safety equipment; namely, that "no act which hampers or causes the stoppage of normal maintenance or operation of safety equipment at factories or other places of employment shall be resorted to even as an act of dispute."117
In the European Union (EU), all member states except the United Kingdom recognize the lawfulness of workers' solidarity action. At the same time, they regulate such action to minimize its effects and to channel disputes toward peaceful resolutions.118
In many EU countries, especially in northern Europe, employers and unions can agree to no-strike clauses in collective agreements that preclude secondaryaction. In other countries including Spain, Italy and France, the right to strike is constitutionally protected and no-strike clauses are prohibited.119
Some countries such as Austria and the Netherlands apply a rule of "reasonableness" or "proportionality" to workers' invoking of solidarity action rights, allowing workers to affect a secondary firm's dealings with the primary company involved in the dispute, but not to influence dealings with other companies not involved in a labor dispute.120 Some countries, such as Denmark, have a "last resort" requirement for using mediation and conciliation mechanisms before action can be taken.121
In some EU countries including France, Spain and Italy, workers engaged in secondary action must share a community of interest with those involved in the primary dispute, giving them some stake in the outcome. As one researcher notes, "Since the right to strike is constitutionally protected in all these countries, it can, however, be presumed that the demand for interest community is not particularly strict. The estimation of interest community probably remains above all to the employees themselves."122 In contrast, in Sweden and Finland the opposite rule obtains: the permissibility of secondary action is tied to the disinterest of secondary actors. According to the same scholar, "the lawfulness of the secondary action is in these countries the more probable the more remote the interests of the primary and secondary action participants are from each other."123
Secondary industrial action is a complex and sensitive matter for any country's labor law system. No country leaves this area of the law totally unregulated. But in nearly every country, secondary action is lawful so long as the primary dispute is lawful and so long as the secondary action is carried out within the bounds of that country's regulations, like those described above. The United States, however, has imposed a blanket prohibition on solidarity action. No effort is made in U.S. law and practice to find a compromise that balances the interests of primary and secondary workers and employers.
The United Kingdom under Margaret Thatcher adopted legislation based on the U.S. statutory scheme prohibiting workers' solidarity action. The ILO foundthese laws to be "excessive limitations upon the exercise of the right to strike."124 The ILO went on to say:
Taken together, these changes appear to make it virtually impossible for workers and unions lawfully to engage in any form of boycott activity, or "sympathetic" action against parties not directly involved in a given dispute . . . [I]t appears to the Committee that where a boycott relates directly to the social and economic concerns of the workers involved in either or both of the original dispute and the secondary action, and where the original dispute and the secondary action are not unlawful in themselves, then that boycott should be regarded as a legitimate exercise of the right to strike. This is clearly consistent with the approach the Committee has adopted in relation to "sympathy strikes.125
Upon further consideration of the British legislation, the ILO concluded:
It was now virtually impossible for workers and unions lawfully to engage in any form of boycott activity or sympathetic action against parties not directly involved in a given dispute; the protections no longer applied to situations where unions and their members had "mixed" industrial, social and political motives for what they did; . . . Accordingly, the Committee asked the Government to introduce amendments . . . which accorded adequate protection to the right to engage in other legitimate forms of industrial action such as protests and sympathy strikes."126
The ILO set forth a general rule on trade union sympathy appeals and action under Convention 87 as follows:
Sympathy strikes, which are recognized as lawful in some countries, are becoming increasingly frequent because of the move towards the concentration of enterprises, the globalization of the economy and thedelocalisation of work centres. While pointing out that a number of distinctions need to be drawn here (such as an exact definition of the concept of a sympathy strike; a relationship justifying recourse to this type of strike, etc.), the Committee [of Experts] considers that a general prohibition on sympathy strikes could lead to abuse and that workers should be able to take such action, provided the initial strike they are supporting is itself lawful.
221 UDHR Articles 20, 23 (emphasis added here and in following references). As is known, the possessive pronoun is gender-specific in English, unlike most other languages. When these instruments were crafted, usually with French as the foundation, "his" in the English translation applied to men and women.
222 ICCPR Article 22.
223 ICESCR Article 8.
224 ILO Convention No. 87 Concerning Freedom of Association and Protection of the Right to Organise.
225 ILO Convention No. 98 Concerning the Application of the Principle of the Right to Organise and to Bargain Collectively.
226 See ILO Resolution, Official Bulletin, Vol LVII, p. 152 (1974).
227 ILO Declaration on Fundamental Principles and Rights at Work and Its Follow-Up (1998).
228 Norris-LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C. §§ 101-15 (1988).
229 NLRA Section 2.
230 Agricultural workers are covered by the Migrant and Seasonal Agricultural Workers Protection Act (AWPA) for certain working conditions, but this law does not protect the right to organize and bargain collectively, as it would conflict with the NLRA's exclusion of agricultural workers from coverage.
231 See Michael H. LeRoy and Wallace Hendricks, Should "Agricultural Laborers" Continue To Be Excluded from the National Labor Relations Act?, 48 Emory Law Journal 489 (Spring 1999) (hereafter "`Agricultural Laborers'") for an extensive discussion of the legislative history of the agricultural exclusion under the NLRA.
232 See, for example, Daniel Rothenberg, With These Hands (1999).
233 These include New Jersey, Massachusetts, Wisconsin, Oregon, Kansas, South Dakota, Arizona and California. See LeRoy and Hendricks, "`Agricultural Laborers,'" p. 493.
234 Human Rights Watch interview with Guadalupe Gamboa, United Farm Workers of America representative, Sunnyside, Washington, November 6, 1999; see S. Lynne, Walker, "ALRB has become foe, Chavez says," San Diego Union-Tribune, May 26, 1987, p. A-7; Russ Hemphill, "Politicians Rush to Honor Chavez; But Reject Farm Workers' Rights He Sought," Phoenix Gazette, November 9, 1993, p. B1. Since this Human Rights Watch report focuses on national law and practice, it does not examine workers' rights under these state laws or further evaluate criticisms of these laws. for more discussion, see LeRoy and Hendricks, "`Agricultural Laborers.'"
235 See COTA v. Molinelli, 552 A.2d. 1003 (N.J. 1989); Bravo v. Dolssen Companies, 125Wn.2d 745; 888 P.2d 147 (1995).
236 U.S. Bureau of Labor Statistics, unpublished tabulations from 1998-1999 population survey, on file with Human Rights Watch. Of the 847,000 "private household workers": 1) approximately 1,000 are launderers and ironers; 2) approximately 4,000 are cooks; 3) approximately 14, 000 are housekeepers and butlers, defined as those who "hire, supervise,and coordinate the household staff to keep the household running smoothly;" 4) approximately 278,000 are child care workers, including babysitters, nannies, infant nurses, and governesses; and 5)approximately 549,000 are "private household cleaners and servants," defined as those whose duties may include dusting and polishing furniture; sweeping, mopping, and waxing floors; vacuuming; cleaning ovens, refrigerators, and bathrooms; washing dishes; polishing silver; changing and making beds; washing, folding, and ironing clothes; washing windows; looking after children or elderly persons; cooking; feeding pets; answering the telephone and doorbell; and taking clothes to the cleaners, doing grocery shopping, and running other errands. U.S. Bureau of Labor Statistics, 1998-1999 Occupational Outlook Handbook, http://stats.bls.gov/oco/ocos175.htm (visited 9/17/99).
237 See Bridget Anderson, "Just Like One of the Family"? Migrant Domestic Workers in the European Union (unpublished thesis, 1998), p. 34, on file with Human Rights Watch.
238 See, e.g., Somini Sengupta, "An Immigrant's Legal Oddysey: In Suing employer, Maid fights Diplomatic Immunity," New York Times, January 12, 2000, p. B1; Tom Robbins, "Protecting Exploited Domestics," New York Daily News, August 9, 1999, p. 15; Kala Dwarakanath, "Fighting worker exploitation," India in New York, May 29, 1998, p. 16; Human Rights Watch telephone interview with Celia Rivas, attorney, Spanish Catholic Center, Gaithersburg, Maryland, November 29, 1999; Human Rights Watch telephone interview with Edward Leavy, attorney, Washington, D.C., November 19, 1999; Human Rights Watch telephone interviews with Steven Smitson, attorney, CASA of Maryland, Inc., Silver Spring, Maryland, November 4, 1999 and November 22, 1999.
239 See, e.g., Jessica Shattuck, "Nahar Alam: fighting for the rights of domestic workers," Mother Jones, September 1, 1998, p. 22; Sonia Shah, "Help for Immigrant Women," The Progressive, June 1, 1998, p. 14; Human Rights Watch Leavy, Smitson interviews.
240 See, e.g., Alex Tizon, "An Illegal Aliens' Tale--Caught in a Web of Fraud and Dreams," The Seattle Times, August 1, 1999, p. A1; Dwarakanath, "Fighting worker exploitation," India in New York; Human Rights Watch Leavy, Smitson interviews.
241 Human Rights Watch Rivas, Smitson interviews; Margaret Ramirez, "Adding Injury to Insult: Domestic workers say they are humiliated, even hurt," Newsday, March 15, 1998, p. A36; Pamela Constable, "Housekeeper Wins Suit Against Boss," The Washington Post, June 10, 1997, p. E5.
242 Complaint, Shamela Begum v. Mohammed Saleh and Khatun Saleh, Civ. No. 99-11834, (SDNY, December 7, 1999), ¶ 1; Letter from David Wohabe, attorney for Defendants Mohammed and Khatun Saleh, to the Honorable Richard M. Berman, United States District Judge, Southern District of New York, January 18, 2000, p. 1; Somini Sengupta, "In Suing Employer, Immigrant Fights Diplomatic Immunity," New York Times, January 12, 2000, p. A23.
243 Complaint, Shamela Begum v. Mohammed Saleh and Khatun Saleh, ¶ 10.
244 Ibid., ¶¶ 1, 11, 19.
245 Ibid., ¶ 12.
246 Ibid., ¶ 14; Sengupta, "In Suing Employer . . .".
247 Ibid., ¶ 13.
248 Ibid. In June 2000 the case was settled out of court. See Somini Sengupta, "Settlement Reached in Maid's Suit Against Diplomat," New York Times, June 15, 2000, p. B2.
249 See "Order Adopting Report and Recommendation," Deborah K. Chasanow, U.S. District Judge, September 14, 1999, and "Report and Recommendation, William Connelly, U.S. Magistrate Judge, August 19, 1999, Yeshehareg Teffera v. Dawit Makonnen, Civil No. DKC 98-3420, United States District Court for the District of Maryland.
250 William Branigin, "A Life of Exhaustion, Beatings and Isolation," The Washington Post, January 5, 1999, p. A6.
251 See Ruben Castañeda, "Man Found Guilty in Slave Case; Md. Couple Brought Woman From Brazil," Washington Post, February 11, 2000, p. B1.
252 Ibid. Subsequent editorial comment noted that "the sad fact is that no one can say for sure how many other cases like hers may exist . . . more than 30,000 domestic workers were brought into the country during the 1990s on special work visas, and uncounted others came to work illegally. If these workers-isolated in homes, often unable to speak English and fearful of deportation-encounter abuse or exploitation, help can seem completely out of reach." (See "Slavery in the Suburbs," Editorial, Washington Post, February 13, 2000, p.B6).
253 Human Rights Watch telephone interview with representative, French Democratic Confederation of Workers (CFDT), Paris, France, December 14, 1999. The CFDT representative said that domestic workers in France negotiated a collective agreement in 1992-the Convention Collective Nationale des Employés de Maison (National Collective Agreement of Household Employees)-with the French national federation of employers of domestic workers. The collective agreement covers all domestic workers in France, both union and non-union members, and sets forth explicit terms and conditions with which the employer of a domestic worker must comply. If the collective agreement is breached, a domestic worker may report to a French labor inspector, request that the breach be documented, and take the case to court. Protections for domestic workers such as those set forth in the French collective agreement may soon apply to domestic workers throughout the European Union. A public campaign in support of a draft EU rule establishing minimum rights for domestic workers was launched in October 1999. Unions representing domestic workers are now engaging in a vigorous EU-wide campaign to garner support for the charter.
254 See Dwarakanath, "Fighting worker exploitation."
255 See Shah, "Help for Immigrant Women."
0 Human Rights Watch telephone interview with Shabhano Aliani, co-founder and current volunteer and board member of Workers' Awaaz, November 29, 1999.
1 In 1997, an ACLU attorney, Michael Wishnie, reached a settlement in Workers' Awaaz's first court case filed against an exploitative employer, obtaining $20,000 in back pay for the domestic worker. See Shattuck, "Nahar Alam. . . ."
3 The Workplace Project is a not-for-profit organization that uses grassroots organizing, legal action, and community education to seek just working conditions for Latino immigrants on Long Island. Lucia Hwang, "Workplace Project Helps Latino Laborers Help Themselves," Newsday, October 12, 1998, p. 27; Robert Gearty, "Fighting for Workers' Rights," New York Daily News, August 2, 1998, p. 2.
4 Human Rights Watch telephone interview with Nadia-Marín Molina, executive director, Workplace Project, November 22, 1999.
5 See Katti Gray, "A United Front: A year-old co-op strives to give Hispanic maids a voice in their workplace," Newsday, September 21, 1999, p. B6; Ramirez, "Adding Injury to Insult ."
6 Human Rights Watch Marín-Molina interview.
10 See Dial-A-Mattress Operating Corporation, 326 NLRB No. 75 (1998).
11 See Independent Contractor Status: Hearing Before the House Comm. on Small Business, 104th Cong. (1995); Testimony of David F. Stobaugh, "An Employee By Another Name Is Still An Employee," U.S. Department of Labor, ERISA Advisory Council on Employee Welfare and Pension Benefit Plans, September 8, 1999 (on file with Human Rights Watch).
12 Ibid., containing Coopers & Lybrand, Projection of the Loss in Federal Tax Revenues Due to Misclassification of Workers (1994), pp. 58-59.
13 See U.S. Department of Labor, U.S. Department of Commerce, Commission on the Future of Worker-Management Relations, Fact Finding Report (May 1994), pp. 93-94.
14 This refers to the practice whereby an employer terminates the employment relationship and requires workers to become self-employed operators performing the same work as previously, but bearing all the costs and risks of ownership. Workers must provide for their own health insurance, retirement benefits, etc., and are no longer allowed to form and join a union. If such "owner-operators" form an association to seek better wages and conditions, they can be prosecuted under anti-trust laws.
15 Commission Report., p. 93; see also Evelyn Iritani, "Franchise Hopes Turn to Frustration," Seattle Post-Intelligencer, November 19, 1991, p. A1.
16 See Daphne Eviatar, "Trying to Drive Home Their Point: Workers Complain of Unfair Conditions," New York Newsday, December 12, 1999, p. A3.
17 See "Organizing Drivers," editorial, Journal of Commerce, October 25, 1999.
18 See Stuart Silverstein and Jeff Leeds, "Independent Truckers, Union Form a Convoy: A high-stakes, long-shot campaign to organize would, if successful, write a new page in labor history, but many roadblocks remain," Los Angeles Times, May 11, 1996, p. D1 (hereafter "Convoy").
19 See Michael H. Belzer, "Paying the Toll: Economic Deregulation of the Trucking Industry" (Washington, D.C., Economic Policy Institute 1994), p. 1. Belzer points out that such practices "contribute to inefficiency and low productivity, since the carriers who employ these low-cost workers have little incentive to improve their management practices (Ibid).
20 Quoted in Patrick Harrington, "18 Wheels, $7 an Hour," Seattle Times, May 23, 1999, p. 1.
21 See, for example, Stuart Silverstein, "Undaunted by Setbacks, Truckers Look to Union: Drivers' struggle to organize reflects passion, problems of Southland immigrant workers." Los Angeles Times, February 17, 1997, p. A1.
22 See Silverstein and Leeds, "Convoy."
23 See New Jersey Famous Amos Chocolate Chip Cookie Corp., 236 NLRB 1093 (1978).
24 See, for example, George Feldman, Workplace Power and Collective Activity: The Supervisory and Managerial Exclusions in Labor Law, 37 Arizona Law Review 525 (1995).
25 See NLRB v. Health Care & Retirement Corp. of America, 114 S. Ct. 1778 (1994); Peter Blackman, "Challenge to Labor: Employers Hope to Capitalize on High Court ruling," New York Law Journal, August 18, 1994, p. 5.
26 Bargaining unit controversies have affected worker organizing in the health care field for many years. For an extensive description and analysis of these problems based on empirical research supported by the W.E. Upjohn Institute, see Michael H. LeRoy, Joshua L. Schwarz and Karen S. Koziara, "The Law and Economics of Collective Bargaining for Hospitals: An Empirical Public Policy Analysis of Bargaining Unit Determinations," 9 Yale Journal of Regulation 1 (Winter 1992).
27 See NLRB, "Guideline Memorandum on Charge Nurse Supervisory Issues," Memorandum OM-99-44, August 24, 1999); NLRB v. GranCare Inc., No. 97-3431 (7th Cir., March 3, 1999).
28 See Schnurmacher Nursing Home v. NLRB, 2d Cir., No. 98-4388 (l), June 6, 2000.
29 See NLRB v. Bell Aerospace Co., 416 U.S. 267 (1974)
30 See NLRB v. Yeshiva University, 444 U.S. 672 (1980).
31 For a thorough history and analysis of the issue of tribal employers' exclusion from the NLRA, see Helen M. Kemp, "Fallen Timber: A Proposal for the National Labor Relations Board to Assert Jurisdiction over Indian-Controlled Businesses on Tribal Reservations," 17 Western New England Law Review 1 (1995).
32 See NLRB v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).
33 See Leland Stanford, Jr. University, 214 NLRB 621 (1974). The NLRB is reconsidering the Stanford rule excluding graduate teaching assistants from the NLRA's protection, but has not made a final determination to change it. See NLRB Decision and Order, Yale University and Graduate Employees and Students Organization (GESO), Case 34-CA-7347 (November 29, 1999; Courtney Leatherman, "Decision in Yale Case Leaves Graduate Students and University Both Claiming Victory," The Chronicle of Higher Education, December 10, 1999, p. A20.
34 ICCPR Article 22(2).
35 ICESCR Article 8(2).
36 ILO Convention 98, Article 6.
37 See N.C. General Statutes §§95-98 (1985). The constitutionality of this provision was upheld in Winston-Salem/Forsyth County Unit of N.C. Association of Educators v. Phillips, 381 F.Supp. 644 (M.D.N.C. 1974). Another provision barring government workers from joining any labor organization was ruled unconstitutional. See Atkins v. City of Charlotte, 296 F. Supp. 1068 (W.D.N.C. 1969).
38 See Texas Statutes Annotated, Art. 5154c (Vernon 1971).
39 See Commonwealth of Virginia v. County Board of Arlington County, 217 Va. 558 (1977).
40 See prohibited subjects of bargaining, 5 U.S.C. 7106(a).
41 It must be kept in mind that constitutional guarantees run to government action, not private action. Since a governmental entity is the employer of public employee, it must respect their freedom of association under the Constitution. The First and Fourteenth Amendments are not applicable to private employers.
42 See ILO Committee on Freedom of Association, "Complaints Against the Government of the United States of America Presented by the AFL-CIO and Public Services International (PSI)," Case No. 1557, 76 (Series B) ILO Official bulletin, No. 3 at 99, 110-11 (1993).
44 These estimates are based on an analysis of Bureau of Labor Statistics data for 1997.
45 Human Rights Watch interview with CF&I worker Joel Buchanan, Pueblo, Colorado, May 20, 1999.
46 Cited in Julius Getman, The Betrayal of Local 14 (Ithaca, New York, Cornell University Press, 1998), p. 215 (hereafter Getman, the Betrayal of Local 14). The epithet "scab" for someone who takes the job of a worker on strike is still deeply rooted in workers' language, and has evoked powerful literary portrayals as well.
47 ICESCR, Article 8 (4).
48 Council of Europe, European Social Charter (1961), Article 6, paragraph 4 and Appendix.
49 Ibid., Article 31 (1).
50 See Maastricht Treaty on European Union, Protocol and Agreement on Social Policy, Feb. 7, 1992, 31 LL.M. 247, paragraph 13 under "Freedom of association and collective bargaining."
51 North American Agreement on Labor Cooperation, Annex 1, Labor Principle 3.
52 See ILO, Freedom of association and collective bargaining: General survey of the reports on the Freedom of Association and the Right to Organise Convention (No. 87), 1948, and the Right to Organise and Collective Bargaining Convention (no. 98), 1949, paragraph 194 (1994).
53 See ILO, Freedom of Association: Digest of Decisions of the Freedom of Association Committee of the Governing Body of the ILO, Geneva (1996); Report of the Committee of Experts, Vol. 4B, Chapter V (1994).
54 Ibid., paragraph 152. For a broader discussion of this and other aspects of freedom of association, see Lee Swepston, "Human rights law and freedom of association: Development through ILO supervision," 137 International Labour Review 169 (1998); see also Hodges-Aeberhard and Odero de Diós, "Principles of the Committee of Association concerning Strikes," 126 International Labour Review 544 (1987).
55 See Ruth Ben-Israel, International Labor Standards: the Case of the Freedom to Strike (Antwerp, Kluwer Publishers, 1988), p.104.
56 ILO General Survey (1994), paragraphs 176-178; Digest of Decisions (1996), paragraphs 590-600.
57 Ibid., pp. 66-70.
58 See International Labor Organization, Committee on Freedom of Association, Complaint against the Government of the United States presented by the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), para. 92, Report No. 278, Case No. 1543 (1991).
59 See ILO, "Procedure for the examination of complaints alleging infringements of trade union rights," at www.ilo.org/public/english/standards/norm/sources/cfa_proc.htm, paragraph 23.
60 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
61 See Michael H. LeRoy, Regulating Employer Use of Permanent Striker Replacements: Empirical Analysis of NLRA and RLA Strikes 1935-1991, 16 Berkeley Journal of Employment and Labor Law 169 (1995).
62 See Steven Greenhouse, "Strikes Decrease to 50-Year Low . . . as Threat of Replacement Rises," New York Times, January 29, 1996, p. A1.
63 Strikers who are permanently replaced are put on a recall list and must be offered positions vacated by permanent replacements, if the latter quit or are dismissed.
64 ILO Case No. 1543, para. 89.
65 Ibid., para. 91.
66 See letter to employees of January 7, 1999 from company president Ray Jenkins (on file with Human Rights Watch).
67 See PTP "Dear Employee" letter, undated (October 1995), on file with Human Rights Watch.
68 See Joel Cutcher-Gershenfeld, The Social Contract at the Bargaining Table: Evidence from a National Survey of Labor and Management Negotiators, Industrial Relations Research Association, Proceedings of the 51st Annual Meeting, Volume 2 (1999).
69 See Pam Pemberton, "Ludlow Massacre remembered on 85th anniversary," The Pueblo Chieftain, April 18, 1999, p. 1.
70 See, e.g., Denver Post classified advertising section, October 1, 1997; "Notice to Permanent Replacement Employees," Oregon Steel (notice distributed to replacement workers, 1997).
71 See Order Consolidating Cases, Consolidated Complaint and Notice of Hearing, New CF&I, Inc. And Oregon Steel Mills, Inc. and United Steelworkers of America, Cases nos. 27-CA-15562; 27-CA-15750 (NLRB Region 27, June 30, 1998).
72 See Decision of ALJ Albert A. Metz, New CF&I, Inc. and Oregon Steel Mills, Inc. and United Steelworkers of America, Cases 27-CA-15562 et. al., May 17, 2000.
73 Human Rights Watch interview, May 20, 1999.
75 Human Rights Watch interview, May 20, 1999.
77 See "Oregon Steel Mills-Chronology of Labor Dispute," company fact sheet (1998).
78 See "The Rest of the Story," USWA response to company fact sheets (1998), on file with Human Rights Watch.
79 See Metz decision, May 17, 2000.
80 Oregon Steel unfair labor practice hearing transcript, pp. 795-796; Metz decision, p. 14.
81 Metz decision, May 17, 2000, p. 92. In a separate case unrelated to the issue of whether the strike is a "ULP" strike or an "economic" strike, the NLRB issued a complaint against the union for picket line misconduct including damage to replacement workers' automobiles. See Complaint, United Steelworkers of America and its Locals 2102 and 3267 and New CF&I, Inc. and Oregon Steel Mills, Inc., 27-CB-3780 et.al. (1998). An administrative judge's decision in that case was pending. when this report went to press.
82 See John Norton, "Oregon Steel chief underwhelmed by NLRB ruling," The Pueblo Chieftain, March 3, 1998, p. 1.
83 See Jason Blevins, "Ruling favors steel strikers; Pueblo mill vows to fight decision," The Denver Post, May 20, 2000, p. C-1.
84 See Erika Gonzales, "Judge's ruling on steel strikers doesn't end dispute: Pueblo operation was told to rehire workers, pay their back wages," Denver Rocky Mountain News, May 23, 2000, p. 3B.
85 See Tripp Balz, "ALJ finds ULPs by Rocky Mountain Steel, calls for rehires of former strikers, back pay," BNA Daily Labor Report, May 24, 2000, p. A-2.
87 Human Rights Watch Interview, May 20, 1999.
88 See Tripp Baltz, "OSHA Investigating Steel Mill Accident That Resulted in Replacement Worker's Death," Daily Labor Report, Bureau of National Affairs, March 1, 2000, p. A-11; John Norton, "OSHA Inspects Pueblo, Colo. Steel Mill after Second Fatal Accident," The Pueblo Chieftain, March 3, 2000, p.1.
90 See Getman, The Betrayal of Local 14, p. 45.
91 See Paul Weiler and Guy Mundlak, "Economic Competitiveness and the Law, " 102 Yale Law Journal 1907, p. 1917.
92 See Getman, The Betrayal of Local 14, p. 45.
93 Ibid., p. 120.
94 Ibid., p. 215.
95 The earlier air traffic controllers' strike was broken by the Reagan administration's application of federal law forbidding strikes by public employees and did not fall within the scope of the permanent-replacement doctrine under the NLRA flowing from the 1938 Mackay Radio decision. However, the replacement of striking air traffic controllers has been widely noted for sending a "signal" of government approval of the use of permanent replacements. The action of Phelps-Dodge management was one of the first responses to the signal.
96 Ibid., p. 128.
97 Ibid., p. 129.
98 See "Church Strikebreaking Charged: LDS members contend they were urged to defy pickets," Tucson Citizen, May 24, 1984.
99 See Rosenblum, Copper Crucible, p. 133.
100 Ibid., p. 154.
101 Ibid., pp. 88-89. The crime was not solved, and no one was charged.
102 Ibid, p. 194.
103 Ibid, p. 59.
105 See Dennis DeMaio, "Union-busting plan in Pueblo exposed," Colorado Labor Advocate, August 27, 1999, p. 1. In the article, Oregon Steel spokesperson Vicki Tagliafico called Moolick's "game plan" reference "an overstatement" and justified the contribution to the museum as being a "good corporate citizen." Moolick himself blamed "a mole" for leaking the letter. As for the "game plan," Moolick said, "What I told [Buckentin] basically is what you can do and what you can't do. I told him what had worked for me effectively in the past."
106 See Peter T. Kilborn, "Replacement Workers: Management's Big Gun," New York Times, March 13, 1990, p. A24; AP byline, "Strikers at Greyhound Feel Forgotten," New York Times, March 4, 1991, p. B7.
107 See Peter T. Kilborn, "Caterpillar's Trump Card: Threat of Permanently Replacing Strikers Gave Company Big Advantage Against Union," New York Times, April 16, 1992, p. A1; Stephen Franklin, "No peace, no contract a year after Caterpillar standoff," Chicago Tribune, April 12, 1993, p. 1; Stephen Franklin, "Lessons from a labor-management war: class still not over in dispute at Caterpillar," Chicago Tribune, May 15, 1994, p. 1; Barry Bearak, "The Inside Strategy: Less Work and More Play at Cat; Workers stung by strike's bitter end try tactic of t-shirts, balloons and antics; Bosses answer with firings," Los Angeles Times, May 16, 1995, p. A1; Barry Bearak, "The Strike at Caterpillar: Staggered by Hits, Unions Need Ways to Regain Punch, Jobs: Balance of power tips to management, leaving workers feeling vulnerable in a cold new business world," Los Angeles Times, May 18, 1995, p. A1.
108 See "Tire chief talks tough on wages," Charlotte Observer, January 21, 1999; "Continental General Tire Co. to hire replacement workers," The Buffalo News, November 16, 1998, p. 1B.
109 See Executive Order No. 12,954, 60 Federal Register 13,023 (1995).
110 See Chamber of Commerce v. Reich, 74 F.3d 1322 (D.C. Cir., 1996).
111 See, e.g., John F. Schnell and Cynthia L. Gramm, "The Empirical Relations Between Employers' Striker Replacement Strategies and Strike Duration," 47 Industrial and Labor Relations Review 189 (1994).
112 The NLRA declares "the policy of the United States" as one "encouraging the practice and procedure of collective bargaining." See 29 U.S.C. § 151.
113 See Section 8(b)(4) of the NLRA, 29 U.S.C. §158(b)(4).
114 It should be noted that most unfair labor practice cases involve multiple acts of violations, so the real count against which fifty 10(j) injunctions should be measured is in the tens of thousands.
115 See 1998 NLRB Annual Report, p. 19.
116 Much of Japan's labor law was set in place during the post-World War II occupation by the United States, using the Wagner Act as the basic model. See William B. Gould, Japan's Reshaping of American Labor Law (Cambridge, MIT Press, 1984).
117 See Rodo Kankei Chousei Hou (Labor Relations Adjustment Act), Law No. 25 of Sept. 27, 1946, Ch. 5, Art. 36.
118 See Juri Aaltonen, "International Secondary Industrial Action in the EU Member States," Metalworkers Foundation of Finland (March 1998), on file with Human Rights Watch.
119 Ibid., paragraphs 17.2, 17.3.
120 Ibid., paragraph 17.4.
121 Ibid., paragraph 17.3.
122 Ibid., paragraph 17.2.
123 Ibid., paragraph 17.3.
124 See Report of the Committee of Experts on the Application of Conventions and Recommendations, International Labor Conference, 76th Sess., Rep. III, Part 4A, 234, 238-239 (1989).
126 See Report of Committee of Experts on the Application of Conventions and Recommendations, International Labor Conference, 78th Sess., Rep. III, Part 4A, 220-221 (1991).