Human Rights Watch selected case studies for this report on workers' freedom of association in the United States with several objectives in mind. One was to include a range of sectors-services, industry, transport, agriculture, high tech-to assess the scope of the problem across the economy, rather than to focus on a single sector. Another objective was geographic diversity, to analyze the issues in different parts of the country. The cases studied here arose in cities, suburbs and rural areas around the United States.
Another important goal was to look at the range of workers seeking to exercise their right to freedom of association-high skill and low skill, blue collar and white collar, resident and migrant, women and men, of different racial, ethnic and national origins. Many of the cases involved the most vulnerable parts of the labor force. These include migrant farmworkers, sweatshop workers, household domestic workers, undocumented immigrants, and welfare-to-work employees. But the report also examines the rights of U.S. workers with many years of employment at stable, profitable employers. These include packaging factory workers, steel workers, shipyard workers, food processing workers, nursing home workers, and computer programmers.
The cases studied here offer a cross-section of workers' attempts to form and join trade unions, to bargain collectively, and to strike. The cases reflect violations and obstacles workers met in the exercise of these rights. In many cases, workers' voices recount their experiences. Human Rights Watch also made written requests for responses and comments from employers identified in the report. Most of them declined. Of those who did respond, most did not want to be identified by name. In several cases, the names of individual managers are known to Human Rights Watch, but they are omitted so as not to profile them unduly in a human rights report with wide distribution to the public. This report is intended to illuminate systemic problems in U.S. labor law and practice, not conduct of individuals.
In addition to interviews, the report relies on documented evidence in proceedings under U.S. labor law. Researching and writing a report like this is different from other international human rights investigations and reports carried out in zones of armed conflict, in refugee camps, or in countries without functioning legal systems. The United States has an elaborate system of constitutional, statutory and administrative labor law. In many of the cases studied here there are legal records and decisions by neutral adjudicators.
In many cases, the report relies both on interviews with workers and on records available from the National Labor Relations Board (NLRB) or federal court decisions. Workers in the private sector who are covered by the National Labor Relations Act (NLRA) can file charges with the NLRB for violations of theirstatutory rights to organize, to bargain collectively, and to strike. Decisions of the NLRB are subject to review by the federal courts This gives rise to investigations and resulting legal procedures that produce an often extensive written record. Where such a record is available, Human Rights Watch relies on it to shed light on the nature and extent of workers' rights violations.
To supplement its on-the-ground research and official records, Human Rights Watch used credible news accounts of instances where workers' rights appear to have been impaired. Books published by university presses and based on extensive field research are also used, as are law review and social science journal articles.
No Human Rights Watch assertion in this report is based on unfair labor practice charges against employers. Workers can file such charges with the NLRB claiming a violation of their rights, but the charge by itself is an allegation. Human Rights Watch begins relying on NLRB records with the issuance of complaints by the general counsel of the agency. Complaints are issued when an investigation finds merit in the charge.
The NLRB is scrupulous in evaluating charges and issuing complaints. Fewer than 15 percent of unfair labor practice charges result in complaints. However, the NLRB makes intensive efforts to settle meritorious cases before issuing complaints, as well as after issuing complaints but before a hearing. Human Rights Watch refers to such settlements in this report. Their use is not intended to characterize conduct cited in the settlements as unlawful under the NLRA, but to provide an account of the conduct in light of international standards.
Findings of merit in unfair labor practice charges are based on detailed investigations of charges by regional agents of the NLRB and evaluations by experienced labor law attorneys in the regional offices. These investigations include interviewing and taking affidavits from workers who filed charges and from potential witnesses. They also involve consulting extensively with employers and offering them an opportunity to rebut any charges through written position statements and dialogue with the NLRB regional officials. Based on these investigations and evaluations of the evidence, labor law enforcement officials decide whether charges have merit. Only upon finding that charges are meritorious does the NLRB seek pre-complaint settlements or, failing settlement, issue complaints and set cases for trial before administrative law judges, normally several months in the future.1
NLRB records show that in the past decade a very consistent 35-40 percent of unfair labor practice charge cases are deemed meritorious following an investigation.2 Two-thirds of these are settled before complaints are issued, with settlements containing some form of relief. Relief often involves back pay for workers who suffered discrimination, along with posting by employers of notices in the workplace stating that they will not engage in the conduct cited in the settled charges.3
The NLRB general counsel's method of interviewing witnesses, obtaining corroborating evidence, and giving employers an opportunity to respond before issuing a complaint or settling a meritorious charge is analogous to the standard research methods of Human Rights Watch and other organizations that seek to document human rights abuses, most often in areas of conflict where a legal system is inoperative, if it even exists. In the United States, however, succeeding stages of NLRB and federal court proceedings provide further foundation for Human Rights Watch's analyses in this report.
Decisions of administrative law judges are based on testimony and documents subject to the rules of evidence and related examination and cross-examination of witnesses. Decisions normally are issued several months after a hearing is concluded. In cases that were not yet decided as this report goes to press but that have available transcripts of hearing testimony, Human Rights Watch uses testimony from the transcripts in its analysis. Where written decisions of administrative law judges are available, Human Rights Watch uses them and not prior testimony from transcripts or complaints.
Administrative law judges' decisions are appealable to the NLRB's five-member board in Washington. The NLRB can take one, two, or three years to issue its decisions. In several of the cases studied here, the findings of administrative law judges have been appealed and are still pending. Most such findings are upheld by the NLRB on appeal.
Where the NLRB has ruled on appeals from administrative law judges' decisions, Human Rights Watch uses the board's rulings, not the prior decisions, as the basis of its analysis. However, board rulings are themselves subject to appealsto a federal circuit court. In some cases in the report, such appeals are pending. Indeed, circuit court rulings can be appealed to the U.S. Supreme Court, although such appeals are rare and none of the cases studied are in this position. Where decisions of federal appeals courts are available, Human Rights Watch uses them. Federal courts of appeals uphold NLRB rulings in approximately 80 percent of appealed cases.4
In sum, where using NLRB and federal court records as the basis for analyzing cases in terms of workers' freedom of association under international human rights standards, Human Rights Watch uses the "last best" documented evidence and determinations. However, where noted, some determinations were still pending on appeal as this report goes to press and could be reversed. It must again be stressed that Human Rights Watch uses information from documented legal proceedings to inform the analysis of workers' rights under international standards, not to assert conclusively that U.S. law was violated except where, in fact, there has been a final, conclusive determination to that effect under U.S. law.
This report could not address all the issues in U.S. labor law and practice with implications for workers' freedom of association. For example, minority unionism-the right of workers to organize and bargain collectively when they are a minority of the employees in a workplace, a right recognized in many other countries' labor law systems-is not discussed here.5 Neither is denying workers the right to have a coworker present at a disciplinary interview with management when there is no union in the workplace, a recurring issue in U.S. labor law that concerns freedom of association.6 Nor is the issue of workers' right not to associate or to disassociate from a union considered here.
An important distinction in U.S. law between "mandatory" and "permissive" subjects of bargaining is also not treated here, although many analysts suggest that it unfairly restricts the scope of workers' bargaining rights, especially over workplace closures.7 The application of antitrust laws to block organizing effortsby workers deemed independent contractors is another obstacle to freedom of association for affected workers, but it is not taken up here in detail.8 The issue of secondary picketing for organizational purposes ("organizational picketing") is set aside, while secondary action as a means of strike support ("secondary boycott") is addressed. Both actions implicate workers' freedom of association, but the latter is more severely restricted in U.S. law, and more options are available to workers seeking to form a union.9
The denial to state and local public employees in many states of the right to bargain collectively and the right to strike is referred to in discussions of workers excluded from the protection of U.S. labor laws, but without a full analysis or case studies. Brief mention is also made of the denial to federal employees of the right to bargain over economic terms and conditions of employment or to strike, without further treatment. Problems of agricultural workers, domestic household workers and other excluded categories are treated at greater length in this report.
Case studies fall into two broad categories. One involves cases where U.S. law comports with international standards regarding freedom of association, but government enforcement action is not sufficient to protect workers' exercise of their rights in the face of violations by employers. In some cases studied here, governmental power itself interfered with workers' freedom of association.
The second category involves cases where U.S. law conflicts with international labor rights standards and thus places legal obstacles in the way of workers seeking to exercise rights to free association. In practice, distinctions among violations by employers, lack of effective enforcement by government, and legal obstacles cannot always be neatly made, but the general structure of the report approaches the issues with these distinctions in mind. Human Rights Watch's recommendations follow similar lines, suggesting ways to make enforcement of workers' rights more effective under existing U.S. law and proposing changes to U.S. law where it fails to protect workers' freedom of association.