This section summarizes Human Rights Watch's findings and offers recommendations for addressing workers' rights violations by employers, inadequate enforcement of workers' rights by government, and legal obstacles that hinder workers' exercise of the right to freedom of association under international labor rights standards. Some of the recommendations could be achieved by administrative action. Some could be accomplished by the judicial branch in future labor law cases. But for the most part, action by Congress in the form of new legislation is called for.
U.S. labor law and practice are deeply entrenched, and its elements that frustrate rather than promote workers' freedom of association are not easily changed. Agencies can work incrementally at the margins of established rules but cannot take dramatic new initiatives absent legislation by Congress. In contrast to some areas of U.S. law, courts have often acted in the labor law arena to curtail workers' rights. Indeed, this report suggests that many of the features of U.S. labor law and practice that counter international norms result from court-fashioned doctrine, not just from statutory deficiencies.
As a political reality, Congress must work cooperatively with the administration and executive agencies with a joint commitment to craft and adopt new legislation halting violations, strengthening enforcement, and removing the obstacles to workers' exercise of freedom of association described in this report. For the most part, the recommendations offered here call for legislative action. Where a defined, practically achievable administrative action or judicial approach is called for, it is noted.
But beyond the technicalities of administrative regulations, jurisprudence or statutory reforms, a larger reality looms over labor law and practice in the United States. So long as worker organizing, collective bargaining, and the right to strike are seen only as economic disputes involving the exercise of power in pursuit of higher wages for employees or higher profits for employers, change is unlikely. Reformulating these issues as human rights concerns can begin a process of change.
What is most needed is a new spirit of commitment by the labor law community and the government to give effect to both international human rights norms and the still-vital affirmation in the United States' own basic labor law for full freedom of association for workers. The specific findings and recommendations that follow should be seen in this broader context.
One way to begin fostering such a change of spirit is for the United States to ratify ILO Conventions 87 and 98. This would send a strong signal to workers, employers, labor law authorities, and to the international community that the
UnitedStates is serious about holding itself to international human rights and labor rights standards as it presses for the inclusion of such standards in new global and regional trade arrangements.
Authorities and courts can take another step toward creating a climate of respect for workers' rights by looking to international human rights standards to inform their analyses and remedies in cases arising under U.S. domestic law. The NLRB, for example, has no support staff specializing in international labor law. Equipped with such expertise, the board could begin to examine the relevance and applicability of human rights norms or ILO conventions in its work. The private bar has a role here, too. Trade union and employer counsel should brief and argue points of international labor law to advance respect for workers' fundamental rights.
Perhaps most important, the primary actors in the labor field-workers themselves who seek to exercise rights enshrined in international law, and trade union leaders and organizers who assist them-should view and carry out their mission as one that includes human rights concerns, not simply as a business of rendering services in exchange for dues payments or as a path to personal advancement or enrichment. At the same time, their employer counterparts should begin to view workers' self-organization as a fundamental human right, and treat it as such.
Finding: Discrimination against Union Supporters
The basic international norm protecting the right to organize is stated in ILO Convention 98: "Workers shall enjoy adequate protection against acts of anti-union discrimination . . . more particularly acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or participation in union activities." The NLRA's Section 8(a)(3) appears to meet this goal, making unlawful any discrimination against workers for concerted activity, including union activity.
Firing a worker for organizing is illegal but commonplace in the United States. Many of the cases examined by Human Rights Watch for this report reflect the frequency and the devastating effect of discriminatory discharges on workers' rights. An employer determined to get rid of a union activist knows that all that awaits, after years of litigation if the employer persists in appeals, is a reinstatement order the worker is likely to decline and a modest back-pay award. For many employers, it is a small price to pay to destroy a workers' organizing effort by firing its leaders.
Recommendation: Interim Reinstatement; Tougher Remedies
Two measures are needed to give effect to the international norm cited above. First, where the NLRB's investigation finds merit in a worker's charge of discriminatory discharge, the worker should be reinstated while the case continues to be litigated. Only such an interim reinstatement remedy can overcome the devastating impact on individual workers who are dismissed and on the workers' overall organizing effort. In contrast, this remedy creates no more than an inconvenience to the employer-keeping an experienced worker on the job while the worker's claim, already deemed meritorious under the NLRB's rigorous complaint process, is litigated through hearing and appeal stages. This remedy would also curtail appeals lodged solely for purposes of delay.
Second, abuses should carry a meaningful price so that remedies and sanctions have a deterrent value. Workers should receive full back pay regardless of interim earnings. They should receive punitive damages in cases of willful violations of U.S. law. In addition to paying workers victimized by violations, employers who repeatedly engage in discrimination against union supporters should pay substantial fines to the NLRB.
Finding: Imbalance in Communication Power
Employers have wide latitude under U.S. law to campaign aggressively against workers who seek to form and join unions. In written, oral, and filmed communication, employers confront workers with carefully scripted declarations to dissuade them from choosing union representation and collective bargaining. For their part, trade union organizers campaign aggressively to convince workers to choose in favor of representation.
But the battle is highly unequal. Employers oversee workers all day, every day when they are on the job. Indeed, employers begin "campaigning" the first day a worker is hired, communicating the employer's position about wages, working conditions, and treatment by managers. If workers begin an effort to gain a collective voice in the workplace, employers often hire consultants to develop an intensive campaign against forming and joining a union.
The campaign against workers' organizing efforts is most often marked by mandatory captive-audience meetings and mandatory, pressure-filled, one-on-one meetings between individual workers and their supervisors, with the latter coached by consultants on how to present self-organization as risky to employees' interests. Underlying all this employer opposition to workers' organizing is the raw power of the employment relationship-the power to assign work, to pay a wage, to impose discipline, and ultimately to dismiss the worker. Workers hear employers' views with this power in mind.
Recommendation: More Speech for Workers
Many worker advocates call for the repeal of Section 8 (c) of the NLRA, the 1947 "employer free speech" clause that codified court rulings allowing employers to campaign against worker organizing. According to this argument, workers' organizing is their own business; employers should stay out of it. Allowing any campaigning by employers invites unlawful interference because of the employers' inherent advantage in the employment relationship. In this view, the employer's "campaign" consists of the wages and working conditions afforded to employees; if workers decide they need collective bargaining to secure improvements, it should be strictly their own affair.
A human rights analysis approaches these issues differently. As outlined in more detail below, Human Rights Watch advocates more free speech for workers, not less free speech for employers. The goal is to achieve a fair balance for workers to hear all views about choosing to form and join a union, and to reduce the level of fear that so routinely accompanies workers' organizing efforts.
Finding: Workers' Lack of Access to Union Representatives
While forced to listen to the employer's arguments when they seek to organize, workers have only haphazard access to union advocates' views and explanations of the sometimes complicated process of forming a union and bargaining collectively. They may not have any face-to-face communication with organizers in a workplace-related setting. Instead, they have to meet union organizers at their homes or at meetings outside of work time, which is often difficult. For farmworkers in grower-owned housing, even meeting a union representative where they live is often prohibited.
Workers may take union leaflets at the perimeter of employment premises as they enter and leave the job, but even here their access to information is restricted. For example, under the law workers may not receive information from union representatives in publicly accessible parking lots of shopping centers or industrial parks. Workers may distribute union literature in the workplace, but employers can often block this under the law by posting a "nondiscriminatory" rule against solicitation. In the end, the most common form of workers' communication with a union is grabbing a leaflet near the workplace entrance by a public road.
Recommendation: Access to Information from Union Representatives at the Workplace
Congress should adopt legislation authorizing the NLRB to develop rules allowing workers to receive information from union advocates in non-work areas on non-work time within the workplace. Addressing such matters as time, place, duration, number of union representatives allowed access, and other details, access rules should be fashioned to balance the employer's interest in an uninterruptedwork process with workers' right to receive information regarding their right to associate.
Finding: Forced Attendance and Discipline at Captive-Audience Meetings
Almost without limits, employers can force workers to attend captive-audience meetings on work time. Most often, these meetings include exhortations by top managers that are carefully scripted to fall within the wide latitude afforded employers under U.S. law-allowing "predictions" but not "threats" of workplace closings, for example-to deter workers from choosing union representation. Employers can fire workers for not attending the meetings. They can impose a "no questions or comments" rule at a captive-audience meeting, and discipline any worker who speaks up. Many of Human Rights Watch's case studies here involved the use of captive audience meetings.
The only limitation on captive-audience meetings is an NLRB rule prohibiting such meetings within twenty-four hours of the election. The board has ruled that the "mass psychology" and "unwholesome and unsettling effect" of captive-audience meetings tend to "interfere with that sober and thoughtful choice which a free election is designed to reflect."31 It is not clear from NLRB doctrine why twenty-four hours is an appropriate number, or why the same concerns do not apply when management holds repeated captive-audience meetings up to the twenty-four-hour deadline with no opportunity for union advocates to have equal access to communicate with workers.
Recommendation: Proportional Access
A principle of proportional access should apply where employers force workers into captive-audience meetings at the workplace. Workers should have access to union representatives under similar conditions to hear information about their right to form and join trade unions and to bargain collectively.
Equal access for unions should not be automatic. It should be triggered by the employer's use of captive-audience meetings where an employer does not otherwise agree to allow access. NLRB rules should also permit reasonable opportunities for non-disruptive discussion and questioning during such employee meetings, whether with employers or union advocates.
Finding: "Predicting" Reprisals
Under U.S. law, employers and consultants have refined methods of legally "predicting"-as distinct from unlawfully threatening-workplace closures, firings,wage and benefit cuts, and other dire consequences if workers form and join a trade union. For example, a prediction that the workplace will be closed if employees vote for union representation is legal if the prediction is based on objective facts rather than the employer's subjective bias. While this distinction might be discernible to lawyers and judges, it is not clear to workers who hear managers holding superior economic power linking "union" and "closing" in captive audience meetings and in one-on-one discussions with employees.32
Recommendation: Closer Scrutiny and Tougher Remedies
Human Rights Watch does not recommend repealing Section 8(c) or unduly restricting employer speech. Instead, the NLRB should more closely scrutinize such statements by employers for potentially coercive effect. Where it finds violations, the board should apply strong, swift remedies. Most potently, the NLRB should more often seek Gissel bargaining orders, a special remedy now sparingly applied. Based on the name of a Supreme Court case in which the high court upheld the remedy,33 Gissel orders require employers to recognize and bargain with unions in cases where a majority of workers freely signed union cards authorizing union representation and the employers' coercive threats made a fair election impossible. For their part, the courts should signal approval of wider use of the Gissel remedy by upholding NLRB orders for Gissel relief.
Finding: Election Acrimony
NLRB elections too often involve intense, acrimony-filled campaigns marked by heated rhetoric and attacks on the motives of both employers and union advocates. The bitterness of a representation campaign can poison chances of a mutually beneficial bargaining relationship. Unfortunately, many of the cases examined here appear to be launched on such a road.
Many analysts have articulated powerful critiques of the NLRB election process and urged replacing elections with the quicker, non-confrontational card-check method of determining workers' choice for representation and collectivebargaining.34 The card-check system, by which recognition of workers' majority sentiment for or against collective bargaining is based on signed authorization cards, is examined in several cases in this report involving hotel workers, shipyard workers, and apple industry workers. As they demonstrate, the card-check method-with sufficient safeguards to ensure that cards are signed voluntarily-allows a reasoned choice in a less coercive atmosphere.
This argument has merit, and perhaps over time the U.S. system could evolve toward a generalized acceptance of the card-check system. But in American culture now and for the foreseeable future, fairly run secret-ballot elections still have a moral primacy. Workers, employers, and the general public see their outcome as more legitimate.
Recommendation: Expanded Use of Voluntary Card-Check Agreements
Human Rights Watch believes that secret-ballot elections should remain a standard method of determining workers' choice whether to bargain collectively with their employer. At the same time, experience demonstrates that where workers and employers can agree to use card checks that genuinely reflect workers' free choice, with safeguards against coercion by management, by union representatives or by coworkers, they can combine the benefits of freedom of choice and a mutually respectful relationship that carries over into collective bargaining. Public policy should encourage the use of voluntary card-check agreements as an alternative means of establishing workers' majority sentiment and collective bargaining rights.
Finding: Delays in NLRB and Court Procedures
Long delays in the U.S. labor law system confound workers' exercise of the right to freedom of association. In representation cases, NLRB elections take place at least several weeks after workers file a petition seeking an election. In many cases, the election can be held up for months by employer-initiated disputes over which workers should be eligible to vote in the election as part of the "appropriate bargaining unit."
An employer can also file objections to an election after it takes place, arguing that the union used unfair tactics. If the NLRB rules in workers' favor and ordersthe employer to bargain-usually several months, but often one or two years after the election was held-the employer can then undertake what is called a "technical refusal to bargain" to obtain judicial review of the NLRB's decision. That is, the employer can ignore the board's order. In contrast, workers cannot appeal an NLRB decision upholding an employer's objections to an election.
A technical refusal to bargain forces workers and the NLRB to launch a new case, this time an unfair labor practice complaint against the employer's refusal to bargain. The new case often requires years more to resolve in the courts. In many of the cases studied for this report, workers voted in favor of union representation years ago, sometimes by an overwhelming majority, but they are still waiting for bargaining to begin while employers' appeals are pending in court.
Debilitating delays also occur in unfair labor practice cases. Most cases involve discrimination against union supporters or refusals to bargain in good faith. After the issuance of a complaint, several months pass before a case is heard by an administrative law judge. Then several more months go by while the judge ponders a decision. The judge's decision can then be appealed to the NLRB, where one, two, or three years go by before a decision is issued. The NLRB's decision can then be appealed to the federal courts, where again up to three years pass before a final decision is rendered. Many of the workers in cases studied here were fired years earlier and have won reinstatement orders from administrative judges and the NLRB, but they still wait for clogged courts to rule on employers' appeals.
Recommendation: Rapid Elections, Faster Resolution of Election Disputes
The NLRB should conduct an election as quickly as possible after the filing of a petition. The election should take place among workers in bargaining units they seek to form based on their own evaluation of the "community of interest" most responsive to their needs. Where there are genuine issues of exclusions, such as those related to supervisors or independent contractors, elections can go forward with challenged ballots set aside and disputes over status of those employees resolved after the election, not before.
Many worker advocates argue that collective bargaining should commence when the NLRB has reviewed an employer's objections to an election, ruled that a majority of workers freely selected representation, and issued a bargaining order. This would reduce the effect of a "technical refusal to bargain" in defiance of a board order, which leaves workers without bargaining rights for years more as appeals proceed through the courts. The argument here is that workers' right to bargain collectively should take precedence over employers' gaining an unfair advantage by deliberate delaying tactics.
Human Rights Watch stops short of this policy here. The right of appeal to the civil courts is a basic element of due process. Given the mutual commitmentneeded for a sustained, respectful relationship between workers and employers, legal uncertainty over representation rights should not cloud the bargaining process. Requiring an employer to bargain in good faith while the employer at the same time refuses to accept the majority status of the workers' bargaining representative is legally and practically untenable.
The solution recommended here is to bring the corresponding rights of workers and employers as close to parallel as possible. Workers have no right to appeal an NLRB decision upholding an employer's objections to an election and ordering a rerun election. Just as workers have to "live with" NLRB decisions on election objections, employers should also have to accept NLRB orders except in extraordinary circumstances. The NLRB is the specialized agency created by Congress to hold representation elections and guarantee their fairness. Human Rights Watch recommends legislation creating a legal standard for court review of NLRB final bargaining orders similar to the standard for review of arbitrators' decisions, which are rarely disturbed by the courts.35 Along with a new standard for review, a "fast-track" procedure for courts of appeals to decide whether an employer's refusal to accept the board's decision meets the high threshold for judicial review should be established. This will separate truly extraordinary cases from those where an employer undertakes a technical refusal to bargain only to gain time to undermine the workers' choice of a bargaining representative.
Finding: Outmoded Concepts of Bargaining Units
U.S. labor law is still largely based on the model of fixed employee groups working for a single employer. That model is still relevant for a majority of workers, and protection of the rights of association of workers in that majority model must be maintained. But there are many new employment relationships often described as atypical or contingent where workers' freedom of association is frustrated.
Recommendation: Bargaining Units Shaped by Workers' Needs
Labor law must change to encompass the rights and interests of contingent workers, contract workers, and others involved in new occupations and industries as diverse as office cleaning, child or elder caregiving, and temporary workers in high-tech companies and service industries.
Expanding the concept of the "bargaining unit" would allow workers in novel employment relationships to merge their interests with those of others in similar jobs with other employers. Allowed to associate in a collective bargaining arrangement with corresponding multi-employer associations, workers could address their needs in areas beyond traditional wages and benefits. For example, they could bargain for improved training and career ladders providing upward mobility in their employment sector. An isolated employer views these as costs creating a competitive disadvantage, but employers collectively could approach them as opportunities to upgrade skills and productivity in the sector as a whole.36
Finding: Staff, Budget Cuts at NLRB
Congress has hobbled the NLRB over many years by failing to keep staffing and funding levels in line with the growing volume of cases, especially unfair labor practice cases. The number of cases filed each year has tripled since the 1950s, but the NLRB's staffing level has fallen from nearly 3,000 full-time employees in 1980 to fewer than 2,000 in 1998, only slightly more than staffing levels in 1950.
The NLRB's staff and budget constraints have retarded efforts to recruit investigators, agents, and attorneys with foreign-language skills to protect the rights of foreign-born workers, a rapidly growing part of the labor force. Many of the workers' rights violations recounted in this report were suffered by immigrants who do not speak English.
In its earlier decades the bulk of the NLRB's caseload involved representation cases, i.e. running elections. Now more than 80 percent of its workload involves unfair labor practice cases. Requiring careful investigation, often extensive settlement negotiations, and complicated litigation in cases that go to hearing, unfair labor practice cases are much more staff-intensive than representation cases. Yet the size of the NLRB staff and its inflation-adjusted budget have not been adapted to the fact that time-consuming investigation and litigation have replaced administration of elections as the main task of the agency.
Recommendation: More Staff and Resources for NLRB; Renewed Recruiting Campaign
As the premier federal agency charged with protecting workers' freedom of association in the United States, the NLRB is a critically important human rights enforcement agency. It should have the staff and resources to carry out its mandate effectively. For fiscal year 2000, Congress did approve an increase in the NLRB'sbudget from $184.5 million to $205.7 million, the first substantial increase in many years.37 This will allow the NLRB to hire additional staff.
But the FY 2000 increase should not be a one-time adjustment. A multi-year plan for increasing staffing levels should be joined with a determined campaign by the NLRB to retain experienced, committed staff and to recruit outstanding college and law school graduates, as well as young and mid-career individuals interested in moving into human rights work. In appealing to potential NLRB staffers committed to human rights enforcement, particular attention should be paid to applicants' foreign-language skills so that they can help the sizeable number of migrant and other foreign-born workers who suffer violations of their right to freedom of association.
Finding: Government Involvement in Frustrating Workers' Rights
In some cases studied for this report, government officials and police intervened one-sidedly to deter workers from choosing representation and collective bargaining. In one, a town's mayor passed out leaflets citing plant closings to workers on their way to vote in an NLRB election. The U.S. Navy paid more than $5 million for a company to defend actions deemed "egregious misconduct, demonstrating a general disregard for employees' fundamental rights" by a judge who heard evidence in the case. There are no provisions in U.S. law for withholding lucrative government contracts from companies that repeatedly violate workers' rights.
Welfare recipients required to find jobs under the 1996 welfare reform are especially vulnerable to violations. State agencies administering federal monies for welfare-to-work are required to provide a grievance procedure to protect these workers from unjust firings, but regulations are silent about workers' rights to organize, to bargain, or to strike. In many states, a welfare-to-work employee who exercises the right to strike automatically loses cash assistance or other welfare benefits. The same fate can befall a welfare-to-work employee who refuses to accept a job at a workplace where workers are on strike. Many welfare-to-work laborers are also treated as "trainees" who do not meet the definition of "employee" under labor laws protecting employees' right to organize.
Recommendation: No Interference, No Favoritism; Debarment
National associations of state, county and municipal governments and police organizations should undertake special training and educational programs to makelocal officials aware of workers' right to freedom of association and related rights to organize, to bargain collectively, and to strike. Such programs should emphasize the importance of non-interference with these rights and ways to ensure that keeping the peace does not become, in effect, a euphemism for intimidation of peaceful workers. Federal law should be interpreted or amended to provide for federal investigation and prosecution of local officials who violate workers' freedom of association, in the same way that federal civil rights enforcement measures are available.
Government subsidies for hiring workers in empowerment zones should be conditioned on compliance with the NLRA and other relevant labor rights laws. This requirement should be enforced by having companies that violate workers' rights repay the government for subsidies paid. Congress should consider a "debarment" law prohibiting the awarding of government contracts to companies that repeatedly violate workers' rights to organize, to bargain collectively, and to strike. Finally, federal regulations should make clear that the right to freedom of association for welfare-to-work employees must be respected by government and private employers in administering assistance programs.
Finding: Surface Bargaining, Superficial Remedies
Employers can continue to thwart workers' choice to form a union and bargain collectively by bargaining in bad faith-going through the motions of meeting with workers and making proposals and counterproposals without any intention of reaching an agreement. This tactic is called "surface bargaining." The problem is especially acute in newly organized workplaces where the employer has fiercely resisted workers' self-organization and resents their success.
Proving surface bargaining is extremely difficult, since a well-coached employer can follow a legal roadmap created by earlier NLRB and court decisions to give an appearance of good faith. Even when the violation is so clear that the NLRB and courts uphold a surface bargaining charge, the only remedy currently available is an order to return to the bargaining table, where the same cycle can repeat itself . In one case studied here, a company was repeatedly found guilty of bad-faith bargaining after workers voted in favor of union representation, yet no contract was reached for twelve years after the vote, and workers ultimately surrendered bargaining rights.
Recommendation: Stronger Remedies, First-Contract Arbitration
Stronger NLRB-ordered and court-ordered remedies, including punitive damages, should be fashioned for willful refusal to bargain in good faith. Where workers have formed and joined a new union in a previously unorganized workplace and the employer is found to bargain in bad faith, workers should haverecourse to first-contract arbitration as a remedy. Average contract settlements in comparable industries or facilities can be used as a guidepost for an arbitrator applying the first-contract arbitration remedy.
While this remedy should be extraordinary in a system that advances free collective bargaining as a paramount principle, it may be the only effective step where workers have been deprived of the right to bargain freely by the employer's violation of the rule of good faith. As indicated, this remedy would be available only for first-contract negotiations in a newly organized workplace where the employer is found guilty of bad-faith bargaining. This gives workers an opportunity to establish a bargaining relationship that would most likely have taken shape had the employer bargained in good faith. It also provides a chance to demonstrate to the employer that both parties can act responsibly and respectfully under a collective agreement, making good-faith negotiations more probable in subsequent bargaining.
Finding: Exclusion of Millions of Workers from Protection of Organizing and Bargaining Rights
International norms refer to the right of "every person" to form and join trade unions and to bargain collectively. Several of the cases examined by Human Rights Watch for this report involved workers excluded from coverage by the NLRA, such as agricultural workers, domestic employees, and "independent" contractors who actually work in a dependent relationship with a single employer for years. Moreover, supervisory and managerial exclusions are used to deny organizing rights to many workers inappropriately placed in these categories. In the public sector, many states deny state and local employees the right to bargain collectively. As noted above, many welfare recipients employed in workfare programs are categorized as "trainees" and excluded from organizing and bargaining protection.
In all, millions of workers in the United States are excluded from coverage of laws that are supposed to protect the right to organize and bargain collectively. Workers who fall under these exclusions can be summarily fired with impunity for seeking to form and join a union. Even where the employer does not fire them, workers' requests to bargain collectively can be ignored.
Recommendation: Eliminate Statutory Exclusions, Narrow Supervisory and Managerial Definitions
Congress should bring agricultural workers and domestic workers under NLRA coverage with the same rights and protections as all other covered workers. Legal reform should also subject employers' claims of workers' independent contractor status to strict scrutiny by the NLRB and the courts under standards thatmake workers' real-life dependence on employers the test for NLRA coverage. Congress should also act to bring low-level supervisors and managers under the mantle of laws protecting rights of association, with adequate safeguards against conflicts of interest among groups of employees. Federal and state legislation should be enacted to protect public employees' exercise of the right to bargain collectively and the right to strike, under conditions established in international norms. Welfare-to-work and workfare employees should be covered by laws protecting rights of organizing and collective bargaining.
In general, workers who want to organize and bargain collectively should have the right to organize and bargain collectively, except where there are manifestly no employers to bargain with or where the essence of such workers' jobs is so truly managerial or supervisory that they effectively would be bargaining with themselves.
Finding: Subcontracted and "Leased" Workers are denied Freedom of Association and Effective Remedies
As seen in several cases in this report involving farmworkers, express-delivery employees, and high-technology temporary agency employees, many employers can use subcontracting arrangements, supplier chains and temporary employment agencies to avoid any obligation to recognize workers' rights of organization and collective bargaining. In effect, workers labor "for" the prime employer while nominally employed "by" a supplier, subcontractor or agency.
The same problems afflict workers in the apparel manufacturing industry, in janitorial services, and other sectors characterized by layers of subcontracting arrangements, where prime contractors often simply cancel the contracts of subcontractors whose employees form and join unions. The result is widespread denial of workers' freedom of association under international norms, often affecting the most vulnerable workers in the labor force.
Recommendation: Make Prime Contractors and Employers of "Permatemps" Responsible for Workers' Rights of Association, Organizing, and Collective Bargaining
Congress should enact legislation cutting through the fiction of subcontracted employment relationships like those cited that are structured to avoid responsibility for recognizing workers' rights. Fixing responsibility should be based on a test of effective economic power to set workers' terms and conditions of employment, not the formality of an employment relationship. The dominant entity in the employment relationship holding real power over workers' terms and conditions of employment should have legal responsibility to recognize and bargain with workers when a majority choose representation. This principle should apply to large apparelretailers for sweatshop workers, to building owners' associations for janitorial cleaning workers, to agricultural growers who use labor-supplying middlemen, and to other forms of labor contracting.
Finding: Nullification of the Right to Strike By the Permanent-Replacement Doctrine
Employers' power to permanently replace workers in the United States who exercise the right to strike runs counter to international standards recognizing the right to strike as an essential element of freedom of association. International norms limit the right to strike, excepting members of the military and police and authorizing alternatives such as mandatory arbitration when strikes affect public safety. But international norms do not authorize permanent replacements. The ILO has determined that the right to strike "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."
Permanent replacement crosses the line balancing the rights of workers and employers and undercuts a fundamental right of workers. The prospective pain of a strike or lockout is the most powerful incentive to reach a collective agreement without a strike. The balance of pain after a strike or lockout has begun is an equally powerful incentive to resolve the dispute expeditiously. But with the one-sided pain of a strike marked by permanent replacements, the employer maintains operations, workers who exercised the right to strike are left to languish, and after just one year permanent replacement workers can vote to extinguish the strikers' right to representation and collective bargaining.
U.S. law forbids permanent replacement of workers who strike over employers' unfair labor practices, as distinct from "economic strikers" seeking better contract terms. The latter can be permanently replaced; unfair labor practice strikers are entitled to reinstatement when they end their strike. But it often takes years of NLRB and federal court proceedings before a final decision is made as to whether replaced workers have a right to reinstatement. In a case studied by Human Rights Watch for this report, workers at a Colorado steel mill who ended a strike in 1997 still do not know their fate, despite NLRB decisions firmly in their favor ordering reinstatement. In 2000 their employer vowed "years and years of hearings before there's any conclusion on this."
Recommendation: Reverse the Permanent-Replacement Doctrine
Congress should enact legislation prohibiting the permanent replacement of workers who exercise the right to strike. Some trade union advocates argue that a reform should go even further, prohibiting temporary replacements as in someCanadian jurisdictions, or even requiring an employer to cease operations in a legal strike, as in Mexico.
Human Rights Watch does not recommend such a drastic change. Instead, the balance should be restored to a genuine equilibrium permitting employers to engage temporary replacements, as they now can, alongside non-striking employees or supervisors and managers who maintain operations. However, temporary replacements should give way to employee strikers when the strike ends. In effect, prohibiting permanent striker replacements effectuates a "balance of pain" in a strike that promotes more rapid resolution of a dispute while respecting both workers' right to strike and management's ability to operate.
Finding: Stifling of Solidarity Action by Workers
U.S. labor law creates a total prohibition on workers involved in a labor dispute seeking solidarity help from other workers at companies doing business with their employer. The NLRA backs up the ban by requiring the NLRB to seek an immediate injunction to halt any solidarity action or "secondary boycotts." Meanwhile, the board's authority to seek injunctions to halt employers' unfair labor practices, however egregious and destructive of workers' rights such practices might be, is only discretionary and is rarely used by the NLRB.
In contrast to the United States' total ban, other countries have fashioned rules for balancing the interests of workers and employers, protecting workers' right to join in solidarity and employers' right to avoid unwarranted economic harm if they are truly neutral to a dispute. These legal rules comport with the general principle formulated by the ILO that workers' solidarity action is lawful so long as the primary action is lawful and so long as both are carried out in accordance with legal rules.
Recommendation: Reformulate Rules to Allow Workers' Solidarity Action in Keeping with Principles of Freedom of Association
Human Rights Watch recognizes that the issue of workers' solidarity action in support of workers involved in a primary dispute is complex. A purist view sees any limit to secondary action as a violation of freedom of association. But banning any limits to secondary action would be as absolute, at the other extreme, as the current ban on secondary action itself. Rather than removing any and all restrictions, Human Rights Watch recommends a serious effort by Congress to craft new rules allowing workers to seek and to afford solidarity support, looking to comparative experience in other developed countries and to ILO analysis and principles for guidance. For example, some countries of the European Union apply a rule of "reasonableness" or "proportionality" to workers' invoking of solidarityaction 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. Some countries have a "last resort" requirement to exhaust mediation and conciliation mechanisms before solidarity action can be taken.
International human rights principles apply to all persons regardless of immigration and citizenship status. In the United States, Human Rights Watch found workers' rights violations with particular characteristics affecting immigrant workers in nearly every economic sector and geographic area examined in this report, prompting a separate set of recommendations.
Immigrant workers are a fast-growing part of the labor force. Many work in industries with low wages, few benefits, unsafe and unhealthy working conditions, and harsh treatment by managers. These workers are urgently in need of the protection that can be gained through freedom of association, yet they are victimized when they exercise the right. Moreover, violations of their rights to organize and bargain collectively affect their coworkers in many places of employment, diminishing everyone's ability to exercise the right to freedom of association.
Their status often makes immigrant workers less likely to complain about unfair wages and working conditions and afraid to form and join trade unions to defend their rights. For many, the vulnerability of their undocumented status and related fear of deportation are the most powerful forces inhibiting their use of the right to organize and bargain collectively. Still, many undertake efforts to form and join trade unions, only to suffer reprisals.
To address this problem, U.S. labor rights policy must give greater attention to the right to freedom of association in the application of immigration policy than is currently the case. The following findings and recommendations address first the situation of non-agricultural immigrant workers, then conditions of two types of migrant farm labor, one undocumented and one with valid visas for temporary agricultural work in the United States.
With regard to immigrant workers covered by the NLRA (that is, non-agricultural workers), these are Human Rights Watch's findings and recommendations:
Finding: Threats to call the INS; Racial and Ethnic Divisiveness
Human Rights Watch found repeated use of threats by employers during NLRB election campaigns to call the Immigration and Naturalization Service (INS) to have workers deported if they formed and joined a union. In some cases, suchthreats may take a racially divisive turn, with employers telling immigrants that their U.S.-born coworkers-African-Americans, in cases studied for this report-are forming a union to get rid of immigrants.
Recommendation: INS Forbearance When Workers Exercise Freedom of Association; Stronger Remedies
The current discretionary policy of the INS not to conduct "raids" or other internal enforcement measures while an NLRB election is pending should be made mandatory by legislation or by regulation. A policy foregoing raids or other internal enforcement measures should be applied for reasonable periods from a time when workers have begun organizing efforts to a phase following NLRB elections, whatever the results. Finally, where the NLRB finds evidence of deliberate race-or ethnic-based interference with workers' organizing efforts linked to the vulnerable status of immigrant workers, strong remedial action like injunctive relief and bargaining orders should be taken.
Finding: Fear of Filing Charges or Testifying; Workers Subject to Deportation
Human Rights Watch found that immigrant workers are often afraid to come forward to file unfair labor practice charges or to appear as witnesses in unfair labor practice proceedings because they fear their immigration status will be challenged. Many workers seeking to organize and bargain are in fact undocumented. Vulnerability because of their immigration status chills the exercise of these rights. Workers who persist in exercising the right to freedom of association are often victimized by the employer moving from threat to action: calling the INS to have them deported, even though such an act is an unfair labor practice under the NLRA.38
The precarious situation of undocumented immigrants inhibits workers' freedom of association on a national scale.39 In one widely publicized incident involving hotel workers in Minneapolis, Minnesota, management reported the names of nine leaders, all Mexican women working as maids, to the INS after theyand coworkers voted in favor of union representation. The workers were fired, arrested and faced deportation.40
Recent reports suggest that the demand for immigrant labor in a period of low unemployment has eased pressure for strict enforcement of immigration laws.41 However, the INS acknowledges that an exception arises in cases where workers seek to exercise rights to organize, to bargain, or to strike. A senior INS official stated that an undocumented worker is at little risk "unless the employer turns a worker in, and employers usually do that only to break a union or prevent a strike or that kind of stuff."42
Recommendation: "Don't Ask" in NLRB Proceedings; Protected Status for Workers Exercising Rights of Association
NLRB rules should prohibit any assertion of or inquiry into a worker's immigration status by NLRB agents conducting investigations, or by union or employer attorneys in NLRB proceedings, or by administrative law judges or other NLRB officials at any time. This is the thrust of an NLRB General Counsel memorandum on the subject,43 but it should be codified in NLRB rules and given wide, prominent publicity. This rule must be publicized to give workers confidence that their right to freedom of association will be respected and that they cannot be questioned about their immigration status in connection with NLRB proceedings.
Congress should establish a new visa category analogous to "S" visas for undocumented persons who are witnesses in criminal proceedings, or proposed "T" visas for victims of trafficking, for undocumented workers who suffer violations of their right to freedom of association through organizing and bargaining collectively. Both victims of violations of these rights, and potential witnesses in NLRB and court proceedings, should be granted such temporary visa status for the duration oflegal proceedings under the NLRA and appeals through the courts, and for a reasonable period following the conclusion of such proceedings while the INS may consider exercising discretionary authority to allow them to remain in the United States.
Finding: Impossibility of Reinstatement
While under NLRB rules undocumented workers can obtain a reinstatement order, they cannot be reinstated if they cannot regularize their immigration status in short order. This is practically impossible. In one notable case, the attorney for a New York City garment factory-himself a former INS official-called the INS to raid the factory and arrest worker leaders where employees had voted in favor of union representation. The NLRB found this to be an unfair labor practice. However, despite the fact that evidence of the worker's status was obtained by unlawful means, a federal appeals court upheld a deportation order.44
Recommendation: Interim Reinstatement for Immigrant Workers Who Suffer Discrimination
Congress should fashion greater balance between immigration laws and laws protecting workers' freedom of association such that immigration rules cannot be used to destroy fundamental rights of association. Workers who obtain a reinstatement order because their right to freedom of association was violated should be immediately reinstated and granted a work authorization card for sufficient time to allow them to seek renewed, extended, or permanent authorization under discretionary authority which may be exercised by the INS in such cases.
With regard to agricultural workers, Human Rights Watch finds and recommends as follows:
Finding: Agricultural Workers' Exclusion
Under current law, all agricultural workers, residents and immigrants alike, are excluded from coverage under the National Labor Relations Act affording protection of the right to freedom of association and rights to organize, to bargain collectively, and to strike. Except in a few states, agricultural workers can be fired with impunity for exercising the right to organize and have no means of obtaining recognition and collective bargaining through elections or other means of demonstrating majority support. No law makes such reprisal an unfair laborpractice, or provides a hearing and enforcement mechanism for redress. Furthermore, because of the intermittent and often itinerant nature of agricultural labor, workers are not able to pursue a claim even if a forum were available.
Recommendation: End the Exclusion with Added Provisions for Farmworkers' Specific Problems
Human Rights Watch recommends including all workers under stronger laws effectively protecting freedom of association, including agricultural workers. In a reformed NLRA structure recommended by Human Rights Watch, agricultural workers, like all workers, would have available interim reinstatement power allowing reinstatement while their case is processed, based on the NLRB's initial investigation and finding of prima facie merit in a claim of discrimination. However, even the several weeks normally taken by the NLRB to conduct an investigation might be too long a time to protect a farmworker. Instead, agricultural worker protection laws should include new, stronger and swifter non-retaliation provisions guarding against dismissal for associational activity. Finally, under strengthened NLRA coverage, agricultural workers could avail themselves of rapid secret-ballot elections for union representation.
Finding: Violations Due to Labor Contracting System
As in other sectors of the economy, the agricultural labor market is becoming layered with contracting and subcontracting systems. For example, large food processors and growers claim not to be employers of farmworkers even where they openly or effectively determine wages and working conditions. These large employers claim that smaller farmers or individual growers are the employer. In turn, smaller farmers or growers argue that they are not employers because they use labor contractors or crew leaders who supply a labor force. These labor contractors are the real employers, growers claim. Crew leaders-called "coyotes" for their ruthless tactics-are often shadowy figures trafficking in migrant farm labor who extract large fees from workers and then cannot be found when any legal proceeding is brought against them.
Recommendation: Accountability by the Prime Employer
As recommended elsewhere in this report in sections dealing with contingent, atypical, and subcontracted labor, U.S. labor law covering agricultural workers should cut through the layers of claimed non-responsibility to hold employers "up the line" accountable for respecting workers' right to freedom of association. Such employers should also be held liable for violations of the right, as long as such employers decisively influence farmworkers' wages and working conditions.
Where workers have formed and joined trade unions, an agricultural collective bargaining framework should allow for multiple-party negotiations bringing all interests to the table to settle wages and working conditions for farmworkers. Thus, for example, if a majority of workers harvesting agricultural products for a large retail food processor choose to form and join a union, a good-faith bargaining obligation should attach to the processor, to growers who supply the processor, and the farmworkers' union.
Finding: Denial of Legal Services
Legal services organizations are barred from representing undocumented workers and from filing class action lawsuits to vindicate farmworkers' rights. Private attorneys cannot receive attorneys' fees in successful suits for individual farmworkers or groups of farmworkers.
Recommendation: Access to Legal Services
Access to legal counsel and to the justice system is an essential aspect of freedom of association denied to agricultural workers. Congress should remove the ban on representing undocumented workers and on class action lawsuits for farmworkers by legal services organizations, and provide for attorneys' fees for representing farmworkers on the same basis they are provided under the Fair Labor Standards Act and civil rights laws. Where undocumented workers are involved in such cases, they should be protected against any inquiry into their immigration status.
With regard to a sub-group of agricultural workers- the temporary, legal migrants who come to the United States with H-2A visas-Human Rights Watch found specific problems and makes separate recommendations:
Finding: a Restricted Labor Force
About 30,000 temporary agricultural workers enter the United States each year under the H-2A program giving them legal authorization to work in areas where employers claim a shortage of domestic workers. Human Rights Watch examined conditions in North Carolina, the state where growers are the largest users of H-2A workers. Some 10,000 H-2A workers are employed in North Carolina.
H-2A workers are tied to the growers who contract for their labor. They have no opportunity to organize for improved conditions, no opportunity to change employers to obtain better conditions, and no access to federal courts to vindicate their rights. Many workers are brought to the United States by associations specializing in H-2A migrants. Representatives of such associations tell workersthat farmworker unions and Legal Services attorneys are their enemies. H-2A workers are often denied the right to receive visitors through restrictive clauses in their housing arrangements.
Recommendation: Mobility, Organizing Rights, and Access to Legal Recourse
The H-2A program should allow workers to seek work with a different employer in the same area, under supervision by H-2A enforcement authorities, if the employer they are assigned to violates their rights. Workers should also have access to federal courts when their rights are violated. Where workers are dismissed or discriminated against for exercising rights of association, a strengthened regime is needed to ensure swift reinstatement or placement in another position where they reside. Workers should have unfettered access in their living quarters to advocates who can advise them about their rights, if workers seek such advice.
Labor department regulations governing the H-2A program should define as an unfair labor practice recruiters' characterizations of unions and legal services as "enemies" of H-2A workers. Recruiters who use such tactics should be subject to cease-and-desist orders and contempt enforcement for continued violation. The H-2A program should instead require that workers be fully informed of their rights to organize and bargain collectively, and have access to legal services and to the justice system, as they desire.
It should be noted that many of the problems cited here also apply to workers who enter the United States temporarily under the H-2B program covering non-agricultural workers. Thousands, for example, labor in agricultural-related processing operations and in plants processing chickens, crabs, and other food products.45 The development of initiatives to address problems of H-2A workers should also apply to other workers facing similar difficulties.
31 See Peerless Plywood Co., 107 NLRB 427 (1953).
32 Indeed, employers often carry out such reprisals to retaliate against workers' attempts to organize. In a comparative study of anti-union plant closings in the United States, Canada, and Mexico, the NAFTA labor commission reviewed 408 federal appeals court and NLRB decisions on full or partial plant closings between 1986 and 1995, finding that employers were found guilty of unlawful discrimination in 367 cases. See Secretariat of the Commission for Labor Cooperation, Plant Closings and Labor Rights (Dallas, Texas, Commission for Labor Cooperation, 1997).
33 See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
34 See, e.g., Craig Becker, "Democracy in the Workplace: Union Representation in Elections and Federal Labor Law" 77 Minnesota Law Review 495 (1993). The card-check method is a standard procedure for choosing representation in several Canadian jurisdictions. Elections would still be needed if workers seek bargaining without having gained a majority signing cards, or in cases where workers are divided between competing unions seeking representation rights.
35 A policy of judicial deference to arbitrators' decisions was established by the Supreme Court in the "Steelworkers Trilogy" cases: United Steelworkers of America v. American Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593 (1960).
36 For an extensive development of this argument for expanding bargaining "units" beyond the 1930s factory model, see Stephen A. Herzenberg, John A. Alic, and Howard Wial, New Rules for a New Economy (Ithaca, New York, Cornell University Press, 1998), pp.161-166.
37 See Bureau of National Affairs, "NLRB," BNA Daily Labor Report No. 6, January 10, 2000, p. S-5.
38 The NLRA covers workers' defined as "employees" regardless of immigration status. Courts have ruled that undocumented workers covered by the NLRA can file unfair labor practice charges if they are discriminated against for union activity. They can obtain a reinstatement order if they are fired for union activity. They can vote in NLRB elections. See Sure-Tan, Inc. v. NLRB, 467 U.S. 833 (1984); NLRB v. A.P.R.A. Fuel Oil Buyers Group, 134 F.3d 50 (2d Cir. 1997).
39 For an overall description of the problem, see Nancy Cleeland, "Unionizing is Catch-22 for Illegal Immigrants: Undocumented status makes them vulnerable to workplace retaliation . . .," Los Angeles Times, January 16, 2000, p. A1.
40 See AP Wire Report, "Illegal Immigrants Help Unionize a Hotel but Face Deportation," New York Times, January 13, 2000, p. A19. The NLRB issued a complaint finding meritorious the workers' charge that they were fired for union activity. The case was settled with the workers' accepting modest payments without right to reinstatement, but still facing deportation. In April 2000, the INS granted the workers two years' "deferred action" status allowing them to stay. See Kimberly Hayes, "Illegal workers get to stay in U.S.; The INS gives seven undocumented immigrants who tried to form a union at a downtown Minneapolis hotel "deferred-action" status for two years," Minneapolis Star-Tribune, April 26, 2000, p. 1B.
41 See, e.g., Louis Uchitelle, "I.N.S. Is Looking the Other Way As Illegal Immigrants Fill Jobs," New York Times, March 9, 2000, P. A1.
42 Ibid., quoting Robert L. Bach, INS associate commissioner for policy and planning.
43 See NLRB General Counsel Memorandum GC 98-15 (December 4, 1998).
44 See Montero v. Immigration and Naturalization Service, Case No. 96-4130 (2d Cir. 1996).
45 For a comprehensive account of conditions of H-2B crab pickers in North Carolina, see the three-part series by Anne Hull, "Una Vida Mejor, A Better Life," St. Petersburg Times: "Leaving Paloma," May 9, 1999, p. 1A; "The Smell of Money," May 10, 1999, p. 1A; "Freedom Found," May 11, 1999, p. 1A.