A Civil Right to Unionize
By RICHARD D. KAHLENBERG and MOSHE Z. MARVIT
Published: March 01, 2012
FROM the 1940s to the 1970s, organized labor helped build a middle-class democracy in the United States. The postwar period was as successful as it was because of unions, which helped enact progressive social legislation from the Civil Rights Act to Medicare. Since then, union representation of American workers has fallen, in tandem with the percentage of income going to the middle class. Broadly shared prosperity has been replaced by winner-take-all plutocracy.
Corporations will tell you that the American labor movement has declined so significantly - to around 7 percent of the private-sector work force today, from 35 percent of the private sector in the mid-1950s - because unions are obsolete in a global economy, where American workers have to compete against low-wage nonunion workers in other countries. But many vibrant industrial democracies, including Germany, have strong unions despite facing the same pressures from globalization.
Other skeptics suggest that because laws now exist providing for worker safety and overtime pay, American employees no longer feel the need to join unions. But polling has shown that a majority of nonunion workers would like to join a union if they could.
In fact, the greatest impediment to unions is weak and anachronistic labor laws. It's time to add the right to organize a labor union, without employer discrimination, to Title VII of the Civil Rights Act, because that right is as fundamental as freedom from discrimination in employment and education. This would enshrine what the Rev. Dr. Martin Luther King Jr. observed in 1961 at an A.F.L.-C.I.O. convention: "The two most dynamic and cohesive liberal forces in the country are the labor movement and the Negro freedom movement. Together, we can be architects of democracy."
The 1948 Universal Declaration of Human Rights recognizes that "everyone has the right to form and to join trade unions for the protection of his interests." The First Amendment has been read to protect freedom of association, and the 1935 National Labor Relations Act recognized the "right to self-organization, to form, join, or assist labor organizations," but in reality, the opportunity to organize is a right without a remedy.
Firing someone for trying to organize a union is technically illegal under the 1935 act, but there are powerful incentives for corporations to violate this right, in part because the penalties - mitigated back pay after extended hearings - are so weak.
It is noteworthy that American workers in the airline and railway industries, which are governed not by the 1935 law but by a stronger statute, the Railway Labor Act, have much higher rates of unionization.
Past efforts to strengthen labor laws over four decades have gotten bogged down: Congress cannot pass reforms until labor's political clout increases, but that won't happen without labor law reform.
The Civil Rights Act of 1964, as amended, has much stronger penalties and procedures than labor laws. Under our proposal, complaints about wrongful terminations for union organizing could still go through the National Labor Relations Board, which has expertise in this field. But the board would employ the procedures currently used by the Equal Employment Opportunity Commission, which provide that after 180 days, a plaintiff can move his or her case from the administrative agency to federal court. There, plaintiffs alleging that they were unfairly dismissed for trying to organize could sue for compensatory and punitive damages and lawyers' fees, have the opportunity to engage in pretrial legal discovery and have access to a jury - none of which are available under current law.
Our proposal would make disciplining or firing an employee "on the basis of seeking union membership" illegal just as it now is on the basis of race, color, sex, religion and national origin. It would expand the fundamental right of association encapsulated in the First Amendment and apply it to the private workplace just as the rights of equality articulated in the 14th Amendment have been so applied.
The labor and civil rights movements have shared values (advancing human dignity), shared interests (people of color are disproportionately working-class), shared historic enemies (the Jim Crow South was also a bastion of right-to-work laws) and shared tactics (sit-ins, strikes and other forms of nonviolent protest). King, it should be remembered, was gunned down in Memphis in 1968, where he was supporting striking black sanitation workers who marched carrying posters with the message "I Am a Man." Conceiving of labor organizing as a civil right, moreover, would recast the complexity of labor law reform in clear moral terms.
Some might argue that the Civil Rights Act should be limited to discrimination based on immutable characteristics like race or national origin, not acts of volition. But the act already protects against religious discrimination. Some local civil rights statutes even cover marital status, family responsibilities, matriculation, political affiliation, source of income, or place of residence or business.
Should organizing at work for "mutual aid and protection" not also be covered?
While there are many factors that help explain why the nation has progressed on King's vision for civil rights while it has moved backward on his goal of economic equality, among the most important is the substantial difference between the strength of our laws on civil rights and labor. It is time to write protections for labor into the Civil Rights Act itself.
Richard D. Kahlenberg, a senior fellow at the Century Foundation, and Moshe Z. Marvit, a labor and job discrimination lawyer, are the authors of "Why Labor Organizing Should Be a Civil Right: Rebuilding a Middle-Class Democracy by Enhancing Worker Voice."