RIGHT TO ORGANIZE IS BEDROCK FOR THE HOUSE OF LABOR
 

Edward Gorham

President

Maine AFL-CIO
 

     This is a time to look ahead to the coming year and define some of the things that we hope to achieve to provide a better life for all workers and working families.

     As usual we will be working in the upcoming legislative session on issues and legislation that impact workers. Since 2006 is an election year we will be working to re-elect Congressmen Tom Allen and Mike Michaud as well as doing everything in our power to assure that our entire Maine congressional delegation and our state legislators as well fully realize the problems and needs of working families and are fighting with us on issues of importance to labor.

Important Challenge

     One of the most important challenges we face in 2006, in addition to the election, is working for legislation that will level the playing field and allow workers to have the right to organize.

     The overwhelming majority of the employers aggressively oppose the union organizing efforts through a combination of threats, discharges, promises of improvements, unscheduled unilateral changes in wages and benefits, bribes, and surveillance. Individually and in combination, these tactics were extremely effective in reducing union election win rates.

Many Workers Fired

    Studies show that in most union elections in addition to plant-closing threats, one in every four employers discharge workers for union activity, while 48 percent make promises of improvement, 20 percent give unscheduled wage increases, and 17 percent make unilateral changes in benefits and working conditions. Sixty-seven percent of the employers hold supervisor one-on-ones with employees at least weekly, 11 percent promote union activists out of the unit, 34 percent give bribes or special favors to those who opposed the union, 31 percent assist an anti-union committee and 10 percent use electronic surveillance of union activists during the organizing campaign.

     Sixty-two percent of the employers in election campaigns ran anti-union campaigns using more than five of the tactics listed, and 20 percent of the employers ran extremely aggressive campaigns using more than 10 tactics. Employers ran no campaign whatsoever against the union in only 3 percent of the campaigns, all of which were won by the union.

Human Rights Report

    A book-length report on U.S. labor practices released by Human Rights Watch in 2000 found that "workers' freedom of association is under sustained attack in the United States, and the government is often failing its responsibility under international human rights standards to deter such attacks and protect workers' rights."

     Many Americans think of workers' organizing, collective bargaining, and strikes solely as union-versus-management disputes that do not raise human rights concerns. This Human Rights Watch Report approaches workers' use of these tools as an exercise of basic rights where workers are autonomous actors, not objects of unions' or employers' institutional interests. Both historical experience and a review of current conditions around the world indicate that strong, independent, democratic trade unions are vital for societies where human rights are respected.

Under Severe Pressure
     Human rights cannot flourish where workers' rights are not enforced. Researching workers' exercise of these rights in different industries, occupations, and regions of the United States to prepare this report, Human Rights Watch found that freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it.

    Most of Human Rights Watch's investigation, however, deals with workers' attempts to form unions and bargain with their employers. Forming and joining a union is a natural response of workers seeking to improve their working conditions. It is also a natural expression of the human right, indeed the human need, of association in a common purpose where the only alternative offered by an impersonal market is quitting a job

 

Under “Sustained Attack”

    The absence of systematic government repression does not mean that workers in the United States have effective exercise of the right to freedom of association. On the contrary, workers' freedom of association is under sustained attack in the United States, and the government is often failing its responsibility under international human rights standards to deter such attacks and protect workers' rights.

     The cases studied in this report are not isolated exceptions in an otherwise benign environment for workers' freedom of association. They reflect a broader pattern confirmed by other researchers and borne out in nationwide information and statistics. This study and others also clearly indicate that a strong majority of workers would prefer to join a union and bargain for their rights if the were not intimidated and threatened for doing so.

Rights Violations

     In the 1950s, for example, workers who suffered reprisals for exercising the right to freedom of association numbered in the hundreds each year. In the 1960s, the number climbed into the thousands, reaching slightly over 6,000 in 1969. By the 1990s more than 20,000 workers each year were victims of discrimination leading to a back-pay order by the NLRB.
    The frequency and growing incidence of workers' rights violations should cause grave concern among Americans who care about human rights and social justice.

Enforcement Falls Short

     The reality of NLRA enforcement falls far short of its goals. Many workers who try to form and join trade unions to bargain with their employers are spied on, harassed, pressured, threatened, suspended, fired, deported or otherwise victimized in reprisal for their exercise of the right to freedom of association.

     Any employer intent on resisting workers' self-organization can drag out legal proceedings for years, fearing little more than an order to post a written notice in the workplace promising not to repeat unlawful conduct and grant back pay to a worker fired for organizing

     Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business, well worth it to get rid of organizing leaders and derail workers' organizing efforts. As a result, a culture of near-impunity has taken shape in much of U.S. labor law and practice.

”Permanent Replacement”

     U.S. legal doctrine allowing employers to permanently replace workers who exercise the right to strike effectively nullifies the right. Mutual support among workers and unions recognized in most of the world as legitimate expressions of solidarity is harshly proscribed under U.S. law as illegal secondary boycotts.
     Labor laws have failed to keep pace with changes in the economy and new forms of employment relationships creating millions of part-time, temporary, subcontracted, and otherwise "atypical" or "contingent" workers whose exercise of the right to freedom of association is frustrated by the law's inadequacy.

     Freedom of association is the bedrock workers' right under international law on which all other labor rights rest. In the workplace, freedom of association takes shape in the right of workers to organize to defend their interests in employment. Most often, workers organize by forming and joining trade unions. Protection of their right to organize is an affirmative responsibility of governments to ensure workers' freedom of association.

Right to Bargain

    The right to bargain collectively stems unbroken from the principle of freedom of association and the right to organize. Protecting the right to bargain collectively guarantees that workers can engage their employer in exchange of information, proposals and dialogue to establish terms and conditions of employment. It is the means by which fundamental rights of association move into the real and enduring life of workers and employers.

    In the United States, millions of workers are excluded from coverage by laws to protect rights of organizing, bargaining, and striking. For workers who are covered by such laws, recourse for labor rights violations is often delayed to a point where it ceases to provide redress. When they are applied, remedies are weak and often ineffective. In a system replete with all the appearance of legality and due process, workers' exercise of rights to organize, to bargain, and to strike in the United States has been frustrated by many employers who realize they have little to fear from labor law enforcement through a ponderous, delay-ridden legal system with meager remedial powers.

New Commitment Needed

    What is most needed is a new spirit of commitment by the labor movement 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.

   Even when employers do break the law there are no punitive damages or large fines. In fact, employers simply have to give back pay minus what the fired employee was making at his or her subsequent job.

    "Many employers have come to view remedies like back pay for workers fired because of union activity as a routine cost of doing business," says the Human Rights Watch Report. "As a result, a culture of near-impunity has taken shape in much of U.S. labor law and practice."

    For several years the AFL-CIO has been attempting to build support for legislation that would chip away at this "culture of near-impunity." The Employee Free Choice Act, which currently has more than 204 sponsors in Congress in the House and 40 in the Senate, would legally recognize a bargaining unit if a simple majority of workers signed a card endorsing unionization.

   It would also create binding arbitration for the first contract a newly certified union negotiates, and increase penalties for employer violations. Similar legislation has come close to passing in the past, but has often fallen victim to filibusters from corporate friendly senators.

            We can and must work together in the labor movement at the federal and at the state level to assure that, in practice as well as in theory, the basic human rights of association, organization and collective bargaining are available to all Maine workers and all American workers. There are many other labor issues but this is the bedrock on which we can build a better future.