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Jobs And Freedom: Why Labor Organizing Should Be A Civil Right

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Adding labor rights to Title VII there are a whole host of practical problems inherent in placing labor rights under the auspices of Title VII. It is easy to understand how a worker who has been fired during an organizing campaign can go to court to get their job back. It is harder to see how workers and their unions could use the court system to address violations of the NLRA during bargaining or after a contract has been signed.

I went to the ILR school at Cornell and I am very much pro Union. I think this is a great article Norman--it would be cool if I could interview you for my graduate dissertation to discuss

The authors should be commended for discussing the importance of the connection between the labor movement and the civil rights movement. It is certainly true that the struggle for workers rights is and ought to be deeply and intimately connected to the struggle for the civil and human rights that Title VII was written to protect. In keeping with MLK’s famous maxim, “Injustice anywhere is a threat to justice everywhere” we would do well to remember that the struggle for justice is broader than any one groups’ movement. Having said the above, the idea of adding labor rights to Title VII presents significant legal problems for workers and could be potentially fatal to any serious effort to enact true, meaningful labor law reform in this country. I will touch on several of the reasons why it is important that we do not try to conflate the individual rights protected by Title VII with the collective rights protected by the NLRA. First, and most importantly, Section 7 of the NLRA is a unique piece of statutory language within the canon of American law. It is the only law I know of that is fundamentally designed to protect the rights of a group of people engaging in activity together. Of course, it does protect the right of the individual worker to engage in union activity. But, the activity that it was written for is “protected concerted activity.” Title VII, on the other hand, was written to deal with the individual’s right to be free from discrimination, in employment, accommodations, etc. The labor movement is built upon the principle of solidarity and the Wagner Act literally codified legal protection for solidarity. If every individual who feels their labor rights have been violated is forced to address the violation individually through their own private action, the union movement’s fundamental strategy of creating collective solutions to workplace issues will not be possible anymore under our legal system. The original Wagner Act created a level playing field where workers and bosses could resort to “economic weapons” to achieve their goals and the NLRB could step in to facilitate solutions and create “industrial peace through law.” For the sake of workers and our economy, that is the model to which we should endeavor to return. Second, there are a whole host of practical problems inherent in placing labor rights under the auspices of Title VII. It is easy to understand how a worker who has been fired during an organizing campaign can go to court to get their job back. It is harder to see how workers and their unions could use the court system to address violations of the NLRA during bargaining or after a contract has been signed. For example, are we really supposed to go to federal district court every time an (a)(5) charge is filed for failure to provide information during negotiations? Court litigation is lengthy, costly, and complicated. It involves lawyers, civil procedure, and rules of evidence. It is hardly worker friendly. It is simply not a practical solution to the majority of problems that arise in the workplace. Third, as the authors correctly point out, Title VII allows individuals to go to court to address violations of their civil rights. Anyone with even minimal knowledge of American labor history knows that judges have been almost universally opposed to union activity when it has come before them. The American legal system is one that fundamentally privileges property rights over most other rights. Unions do a variety of things, but at their core unions are about leveling the economic playing field and allowing workers a share of their boss’ gains. History teaches that judges protect bosses. That is why, in his wisdom, Senator Wagner created a statute that allows labor rights, through the use of the agency model, to be protected by federal employees who are labor law experts. The political appointees that are involved tend to come from the labor and management bars and are, therefore, equipped to understand (at least theoretically) the need to apply the statute fairly. Congress’ task now should be to give that agency some teeth, not to use Title VII to place labor rights in the hands of judges who may not be familiar with labor law and who will not be sympathetic to the struggle for collective rights. Labor law reform will be hard won when it finally happens. We cannot waste another opportunity for reform by pushing legislation that, once again, addresses the wrong problems with the wrong solutions. True and meaningful labor law reform cannot and must not be focused on eviscerating the essence of the Wagner Act by making labor rights individual rights. A threefold approach to reform is necessary: beefing up the penalties available to the NLRB and enhancing its powers of enforcement; mandating first contract arbitration; and, most importantly, returning economic weapons to the hands of workers by eliminating permanent striker replacement. Individualism is the problem, not the solution. To truly realize the dreams of our labor, civil, and human rights heroes it is essential that we place power in the hands of people who need it. No matter the struggle, the solution will be arrived at collectively and the law must protect our collective power.

Sam Lieberman, a nationally known labor attorney, nails this one. We need serious reform of the NLRA including quicker representational process, larger penalties for violation of the law and vastly speedier enforcement mechanisms, especially in cases of illegal discharge. A law that exist to encourage and protect concerted activity is fundementally different from anti-descrimination laws that can (not always of course) focus on individual discrimination

Regarding Mr. Lieberman's comments, a few quick responses: 1. In our book, Why Labor Organizing Should Be a Civil Right, Moshe Marvit and I propose amending the Civil Rights Act to provide an additional avenue of relief for workers who are discriminated against for labor organizing. We do not advocate repealing the National Labor Relations Act. Accordingly, "individuals who feel their labor rights have been violated" would not be "forced to address the violation individually" as Mr. Lieberman suggests; NLRA remedies would still be available. 2. We also believe in collective action and worker solidarity but we recognize that Americans deeply value individualism, which is why we propose the Civil Rights approach as a more politically realistic way of strengthening organized labor than traditional strategies. 3. We agree with Mr. Lieberman that broader labor law reform is necessary, but we think it is more likely to be passed if we can first enact legislation to deal with the ability of employers to discriminate against workers for union organizing. We have agreed to accept the Shanker Institute's kind invitation to write a piece for the Shanker blog on labor organizing as a civil right and plan to elaborate on these issues in the near future.

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