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Feature
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Free
to Speak
Free to Assemble
Free to Organize
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PACE
members call for a boycott of Crown Central Petroleum,
which locked out all 252 union workers in 1996.
"There’s no reason for us to accept a denial of
our rights in the workplace any more than there is in
our neighborhoods or anywhere else." Photo ©2000,
PACE International Union |
By Elaine Bernard
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| Several
months ago, Rutgers law professor Jim Pope, labor
activist Peter Kellman, and Labor Party organizer Ed
Bruno drafted a new Labor Party paper entitled "Toward
a New Labor Law."
The
authors probably didn’t expect their 16-page white
paper, complete with footnotes, to become a labor
movement best-seller. But the paper has found its way
into the hands of hundreds of trade unionists around the
country, many of whom seem intrigued by its premise:
that there’s a whole other way to look at the question
of "labor rights." The paper dovetails with a
growing interest in the idea that workers’ rights are
human rights.
In
this issue, Harvard Trade Union Program director Elaine
Bernard analyzes the concepts underlying the paper. The
paper’s authors and a range of union activists also
share their reflections.
Many
unionists respond to the paper by asking a question that
comes naturally to practical-minded organizers: What do
we do now? How can we apply these ideas? The Labor Party
offers no prescriptions. Instead, our aim is to spark
discussion and new thinking about our options. In the
next few months, unionists in the Boston area, New
Jersey, Chicago, and California will gather to discuss
the paper and its ramifications. Based on their ideas
and observations, we will revise the draft paper and,
perhaps, suggest some directions for action.
In
the meantime, LP Press readers are invited to read the full
draft paper,
sending comments and suggestions via e-mail to Labor
Party organizer Ed Bruno at laborpne@aol.com. |
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Over 40 percent of U.S. workers say they would
join a union on the spot, if they only had the choice. The
problem is, workers don’t have a choice under current labor
law. And that helps explain why, despite workers’ interest,
less than 14 percent of them are in unions.
Labor law today is largely a series of
barriers over which workers must climb to gain elementary
rights. And each year these barriers get higher and higher.
The law has become a tangled web of complex regulations
constantly violated with impunity by employers.
For almost 65 years, the U.S. labor movement
has fought a losing battle to amend the 1935 National Labor
Relations Act, the cornerstone of U.S. labor law, to make it
more favorable to workers. But should we really be fighting to
restore "fairness" in the NLRA? After all, a victory
in this campaign would simply bring us back to 1935.
The Labor Party, together with friends in
academia, is considering another kind of approach: perhaps we
need to question the basic assumptions behind U.S. labor law.
Few people today remember that when the
National Labor Relations Act was adopted by Congress in 1935,
its purpose was not simply to provide a procedural mechanism
to end industrial strife in the workplace. Rather, this
monumental piece of New Deal legislation had a far more
ambitious mission: to promote industrial democracy. To achieve
this extension of democracy into the workplace, the NLRA
instituted "free collective bargaining" between
workers and employers. Unions were to be encouraged, not
simply tolerated. And it was understood that workers could not
engage in meaningful collective bargaining without collective
representation.
Unfortunately, the NLRA no longer achieves
those original aims. It’s been a long time since we’ve
heard any president or administration talk about promoting
industrial democracy or the rights of American workers. In
fact, these days, the very term "industrial
democracy" seems like a contradiction in terms.
At least part of the problem with the NLRA is
the congressional power upon which it rests. The Act’s
authority derives from Congress’s power to regulate
interstate commerce — the "commerce clause" of the
U.S. Constitution. Given these underpinnings, it’s not
surprising that the courts and the employers have used labor
law as a weapon against workers whenever union power is seen
as challenging commerce.
Instead of using this management-oriented
clause as the basis of labor law, why not go back to the
drawing board? In the U.S. Constitution, there are two
powerful articles that workers could take up and use to
breathe new life into the struggle for worker rights: the
First and Thirteenth Amendments to the Constitution.
Labor law should be based on the idea that the
fundamental rights guaranteed in these amendments — free
speech, assembly, and freedom from "involuntary
servitude" — are not shed at the office door or the
factory gate. Like the civil rights movement of the 1960s, we
can build a workers’ rights movement by exercising rights
guaranteed in the Constitution but denied in practice or
explicitly by unjust laws.
Internationally, the "rights"
approach would unite us with the growing consensus that labor
rights are human rights. In 1998, the International Labor
Organization (with active participation of U.S. labor,
business, and government) adopted a Declaration of Fundamental
Principles and Rights at Work (available
on the ILO website), which spells out four universal
rights:
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freedom of association and the effective
recognition of the right to collective bargaining;
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the elimination of all forms of forced or
compulsory labor;
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the effective abolition of child labor; and
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the elimination of discrimination in
respect of employment and occupation.
But we need not look to the International
Labor Organization, the United Nations, or any other
international institution to find legal backing for the rights
of workers. Our power comes straight from the U.S.
Constitution.
Here are some suggestions about how these
rights might be exercised:
FREEDOM OF SPEECH
=
RIGHT TO ORGANIZE
& EXPRESS SOLIDARITY
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Farm
Labor Organizing Committee president and Labor Party
co-chair Baldemar Velasquez speaks at a rally to
publicize FLOC’s boycott of the Mt. Olive Pickle Co.
The labor movement was built with boycotts and other
solidarity actions. Photo ©2000, Jennifer Warburg,
Impact Visuals |
The First Amendment guarantees the right of
free speech and the right to assemble — and by extension, the
right to bargain collectively. A rights approach, using the
First Amendment, would demand that workers must enjoy freedom
of speech on as well as off the employer’s property and have
a right to call on other workers for support.
In the past, the courts have given precedence
to employer property rights over workers’ speech rights,
limiting the speech of employees and permitting employers to
discipline or fire workers for "disloyal" speech.
Labor law also bans "solidarity" strikes or actions
by workers at "neutral" employers.
But under a rights approach, workers need not
pledge allegiance to the firm and they must be given the same
free speech rights enjoyed by other citizens — especially when
it comes to their right to organize. That means workers would
have the right to invite union organizers onto the employer’s
property and to call on other workers to come to their aid
through boycotts and other sympathy actions, including
solidarity strikes.
When an employer censors a worker’s speech,
it is treating the worker more like a slave than a citizen.
FREEDOM OF ASSEMBLY =
RIGHT TO ORGANIZE
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Cal
Spas workers, who organized with UE, were forced to
strike when the company’s illegal anti-union campaign
caused their representation election to be postponed
(June 1993). Photo ©2000, Slobodan Dimitrov, Impact
Visuals |
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Under the NLRA, the government, through the
National Labor Relations Board, decides what groups of workers
may assemble together for collective action and bargaining.
Instead of protecting the right of workers to join together
and deal with the employer, the Act establishes a system of
government-approved "bargaining units." The Board
and the courts decide which workers will be in which units.
When workers cannot determine who they will
associate with for mutual aid, they are denied a basic right
of citizenship.
Under a rights approach, any number of workers
can form an association, including a union, and present and
resolve grievances and make agreements with the employer.
Freedom of association is not limited to
groups that have majority support. When an individual worker
is forced to face the collective power of a corporate employer
without the support of her union, she is placed in the
position of a helpless slave dealing with a powerful master.
FREEDOM FROM
INVOLUNTARY SERVITUDE =
RIGHT TO ORGANIZE,
STRIKE, & BOYCOTT
The Thirteenth Amendment abolished slavery and
involuntary servitude: "Neither slavery nor involuntary
servitude, except as a punishment for crime whereof the party
shall have been duly convicted shall exist within the United
States, or any place subject to their jurisdiction."
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Cartoon
©2000, Gary Huck |
A rights approach, using the Thirteenth
Amendment, would demand that the right to strike must include
the right not to lose one’s job permanently to a
strikebreaker.
The freedom of labor must include the right to
withhold personal labor in solidarity with workers in other
parts of the country or even internationally. With
corporations organized on a multinational basis, effective
labor freedom necessarily requires the right to engage in
solidarity actions, and to combine across borders.
Many solidarity efforts, both domestically and
internationally, run up against a prohibition on
"secondary boycott" that effectively prohibits
solidarity actions. When corporations are permitted to
organize multinationally and give assistance to a struck firm,
while workers are limited to local protests and only permitted
to engage in action against the immediate employer because of
artificial corporate boundaries, then corporations become
arrogant masters while workers are reduced to dependent
slavery.
Under current law, workers’ freedom of labor
is subordinated to employer property rights. Workers may not
be fired for striking, but they may be "permanently
replaced" by strikebreakers. The employer’s property
right "to protect and continue his business" trumps
the workers’ right to strike. In practice, then, an employer
can permanently replace strikers as a way of punishing them
for exercising their "right" to strike.
When an employer has the power to punish
workers for exercising their fundamental rights, the employer
is acting as a master and the employee is a slave whose rights
mean nothing.
Ultimately, a rights approach may help remind
us where labor’s power comes from. Rights are only words.
They have little power on their own. They are not
self-exercising. To exercise them, we need to construct a
vehicle — a union — through which workers can use the rights,
claim further rights, and expand and protect their dignity and
achievements. More important, we don’t have to wait for a
new Congress, a new President, or massive political change to
start exercising our constitutional rights — we can start
doing it right now. Next: A Conversation
with Ed Bruno ->
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