In August 2000, Human Rights Watch published a report documenting the systematic abuse of workers' right to freedom of association in workplaces across the country. The report, Unfair Advantage, highlighted the many shortcomings in U.S. labor law and in its enforcement that prevent workers from freely exercising this fundamental human right. Today, workers are gathering around the nation to share publicly their personal stories with the same message. The Employee Free Choice Act of 2003 would go a long way towards remedying key shortcomings in U.S. law that help perpetuate these abuses.
Facilitating Initial Collective Bargaining Agreements
Human Rights Watch found that workers' right to bargain collectively is often thwarted by employers who engage in "surface bargaining"-negotiating with no intention of ever reaching an agreement. Under current law, even if such illegal bad-faith bargaining can be proven, the remedy is simply more bargaining, where the cycle can repeat itself. For example, in our report, we documented a case in which collective bargaining lasted for twelve years, at which point, frustrated and dwindling in numbers, the union surrendered its bargaining rights still without an agreement. One bargaining representative commented, "At this rate, the company would still have deal-killers on the table twenty-five years from now."
The Employee Free Choice Act of 2003 would help prevent such violations of workers' right to bargain collectively by allowing workers negotiating their first collective contract to seek mediation after ninety days. If mediation were unsuccessful after thirty days, the dispute would be referred to arbitration, leading to a binding contract. (The parties could mutually agree to extend the initial bargaining and subsequent mediation periods.) Far from reforming the nature of collective bargaining, this proposal would merely close loopholes in existing legislation, facilitating the good-faith bargaining relationship intended, but rarely realized in practice, under current U.S. law.
Ending Toothless Enforcement
Remedies available for violating U.S. laws protecting workers' right to organize have little deterrent effect and are considered by employers a small price to pay for a union-free workplace. For especially egregious conduct, the National Labor Relations Board (NLRB) can seek an injunction, but it rarely does so. In most cases, the NLRB simply orders the offending employer to restore the status quo and post a notice that it will not repeat the unlawful conduct. Human Rights Watch's report described a case in which the NLRB ordered an employer to reinstate a worker, with back pay, fired five years earlier for supporting a unionization drive. After subtracting the worker's interim earnings over five years, he was only entitled to $1,305, plus interest.
The Employee Free Choice Act of 2003 would strengthen the penalties for anti-union discrimination committed during an organizing drive or first-contract negotiation: increasing the amount due victimized workers; providing for civil fines of up to $20,000 per violation for willful or repeated illegal acts; and requiring the NLRB, if it reasonably believed such prohibited activity had occurred, to seek injunctive relief. These reforms would not change the basic rules governing workers' right to organize in the United States. Instead, they would give them teeth, making U.S. employers think twice before violating existing U.S. laws protecting freedom of association.
Streamlining Union Certification
Human Rights Watch has found that anti-union discrimination is rampant during union election campaigns. In one case, an employer illegally threatened to cut pay and benefits if workers chose the union and fired two key union leaders. A worker told Human Rights Watch that, as a result, "everybody is scared [to unionize] now."
Employers also use myriad legal tactics during union election campaigns to dissuade workers from voting to unionize and, if unsuccessful, mount legal challenges to elections, which can drag on for years. Human Rights Watch believes that employers are entitled to exercise their right to freedom of expression to argue against unionization and that the right to appeal election results is a basic element of due process. We also believe, however, that workers have a parallel right to campaign under similar conditions for unionization and that safeguards should prevent baseless employer appeals from impeding workers' right to freedom of association. Neither is the case under U.S. law. Instead, the playing field is far from level. For example, employers force workers to attend anti-union captive-audience meetings during work time, yet union organizers are denied the opportunity to hold similar meetings; employers make their views clearly known during the workday, yet workers are denied access to union advocates in the workplace.
With the deck stacked against them, workers often find NLRB union elections coercive and acrimonious, rather than a free and fair means for exercising their right to organize. Yet, under current law, NLRB elections may be unavoidable. Workers can ask employers to recognize unions based on signed worker authorizations choosing to unionize-a "card check." But employers can decline and request an NLRB election. Under the Employee Free Choice Act of 2003, if workers requested "card-check" recognition and the NRLB authorized the results, employers would be required to bargain with the union, allowing workers to evade the perilous NLRB election process and increasing their chances of freely exercising their right to organize.
We hope we can count on your support of the Employee Free Choice Act of 2003. Its passage would send a message to workers in the United States and around the world that this country's professed support for fundamental workers' rights is not empty rhetoric but official policy.
We would welcome the opportunity to discuss these issues further and can be reached at 202-612-4321. In addition, please contact us if you would like to receive a copy of Unfair Advantage.
Sincerely,
Wendy Patten
U.S. Advocacy Director
Human Rights Watch |
Carol Pier
Labor Rights and Trade Researcher
Human Rights Watch |
