Each year thousands of U.S. workers are fired or suffer other reprisals for trying to organize unions. Millions of workers are excluded from labor laws meant to protect workers' organizing and bargaining rights, and their number is growing. Violations of workers' freedom of association are a strong but hidden undercurrent in the vast American economy.
"I know the law gives us rights on paper, but where's the reality?" asks Ernest Duval, a Florida nursing home worker unlawfully fired for leading a union organizing effort in 1994. Duval finally returned to work in 1999 but was fired again in 2000. His employer had a long memory.
When it comes to workers' right to form unions, loophole-ridden laws, paralyzing delays and feeble enforcement have created a culture of impunity in many areas of U.S. labor law and practice. According to statistics from the National Labor Relations Board (NLRB), the federal agency created to enforce workers' organizing and bargaining rights, the problem is getting worse.
In the 1950s, workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In 1969 the number was more than 6,000. By the 1990s more than 20,000 workers each year suffered a reprisal serious enough for the NLRB to issue a "back-pay" or other remedial order.
Violations of workers' rights are especially troubling when the United States calls on other countries to respect "core labor standards," including freedom of association. U.S. officials argue that such standards should be included in rules of the international trade system. But U.S. efforts to have other countries upgrade their labor standards falter when the United States itself fails to protect workers' right to organize.
In our new report on workers' freedom of association in the United States under international human rights standards, Human Rights Watch found that one-sided rules for union organizing unfairly favor employers over workers. Farm workers, domestic workers, low-level supervisors and other categories of workers numbering in the millions are expressly denied labor-law protection for organizing and bargaining rights. Immigrant workers especially face widespread threats and discrimination if they seek to form unions.
Too often, policy debates over U.S. labor law and practice turn on whether they make it easier or harder for unions to organize workers, and whether that's good or bad for the economy. From this standpoint, workers' organizing efforts are just labor-management disputes over shares of the economic pie. But basic human rights such as freedom of association should not be linked to economic outcomes.
The 200-page Human Rights Watch report is based on case studies across a range of industries, occupations and regions of the United States. The report recognizes that U.S. workers generally do not confront gross human rights violations where death squads assassinate union activists or collective bargaining is outlawed. But the absence of systematic government repression does not mean that workers have effective exercise of the right to freedom of association. The case studies in the Human Rights Watch report uncover a distressing pattern of threats, harassment, spying, firings and other reprisals against worker activists and a labor law system that is failing to deter such violations.
The Human Rights Watch report should prompt U.S. policymakers to reframe the debate over labor rights and trade, recognizing that workers' rights violations are not peculiar to developing countries. The United States should continue to press for workers' rights in trade and investment--but on a foundation of equality and humility, recognizing that workers in nearly all countries run risks when they try to form unions. If the United States starts walking the walk on workers' rights, it will be in a stronger position to persuade the international community to make labor rights an integral part of the global trade and investment system.
**) The writer teaches international labor law at Cornell University and wrote the Human Rights Watch report 'Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights