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A Human Rights Perspective On U.S. Labor Relations Law

SPHRE Working Paper No. 2 by James A. Gross
2 July 1999

James A. Gross
Professor, Cornell University
267 Ives Hall
Cornell University
Ithaca, NY 14853-3901

Phone: 607-255-5490
Fax: 607-255-0107

Introduction

The concept of human rights has not been an important influence in the making of U.S. labor policy. This brief paper is part of a larger re-examination of U.S. domestic labor policy using internationally accepted human rights principles as standards for judgment. The essential question the paper attempts to answer is whether the fundamental human right of freedom of association is being violated by the content and application of U.S. labor relations law B particularly in regard to how this country has resolved the conflict between employeesand employersThe paper concludes with some policy recommendations.

Freedom of association requires the kind of participation in the political, economic, and social life of the human community that enables people to have an influence on the decisions that affect their lives. True liberty is the ability to act successfully on one freedom from interference by the state, private organizations, or individuals. That means people must have sufficient power to make the claims of their human rights both known and effective so that respect for their rights is not dependent solely on the interests of the state, their employers or others. (Trimiew, 1997: 208)

Article 20 of the Universal Declaration of Human Rights issued by the United Nations in 1948 asserts the right to freedom of association, including in Article 23 (4) the right to form and join trade unions. The International Covenant on Civil and Political Rights (ICCPR) which the United States ratified in 1992, incorporates in Article 22 language of the Universal Declaration: "Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests." Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which the United States has not signed, also affirms the "right of everyone to form trade unions and join the trade union of his choice." The International Labor OrganizationConvention Concerning Freedom of Association and Protection of the Right to Organize (Convention No. 87) and 1948 Convention Concerning the Application of the Principles of the Right to Organize and to Bargain Collectively (Convention No. 98) address in great part the exercise of the freedom of association rights set forth in the International Covenants.

Freedom of Association in U.S. Labor History

It defies the reality of the last 30 years to claim that current U.S. labor relations law is a model of the freedom of association and it defies labor history to claim that the freedom of association has been respected even generally in this country for anything but brief periods of time. Ours is a labor history of rules of master and servant; English common law property rights; doctrines of criminal conspiracy and illegal purpose; labor injunctions; and a fictional freedom of contract doctrine that upheld "yellow dog contracts" that made employment dependent on a renunciation of the freedom of association. (Gross 1998a: 63-76)

The idea of industrial democracy in the form of collective bargaining, however, was around a long time before the New Deal and the Wagner Act. In 1935, the Wagner Act (National Labor Relations Act) established the most democratic procedure in U.S. labor history for the participation of workers in the determination of their wages, hours, and working conditions. It was a fundamental change in public policy, declaring that it was the policy of the U.S. government to encourage the process and procedure of collective bargaining and to protect the exercise by workers of their freedom of association. When the Taft-Hartley Act was passed in 1947, Congress left intact this Wagner Act policy statement. (Gross 1998: 351-352)

The Freedom of Association and Contemporary U.S. Labor Law

Labor in this country never came close to achieving the system of workplace democracy envisioned by Senator Wagner. My own research into U.S. labor policy from 1947-1994 demonstrates that the statute and National Labor Relations Board (NLRB) case law has come to legitimize employer opposition to the organization of employees, collective bargaining and workplace democracy. (Gross 1995) Although many share the blame for breaking the promise of a democratic system of workplace self-governance, there is persuasive evidence that the determined opposition of U.S. employers taken as a whole has been the biggest obstacle to the acceptance of a national labor policy of freedom of association and collective bargaining. As Benjamin Aaron put it, "employer resistance to unions has deep historical roots and is still strong and growing." (Gross 1998: 368)

Organized business has also resisted scrutiny of our domestic labor relations law by the ILOCommittee. In defense of the status quo, employers have capitalized on the commonly held belief that our labor law is superior to all others and is, therefore, above criticism by outsiders. Senator Orrin Hatch speaks approvingly of the labor laws delicate balance" which he claims "have worked rather well in our country." (U.S. Senate 1985: 11) The United States Council for International Business (USCIB) has argued before Congress and to be the ILO Association Committee that "re-examination" of any aspect of the U.S. labor law system "would constitute labor law reform in the United States and upset [that] accepted balance of employer and employee rights that have existed in the United States since 1947." (ILO Bulletin Vol. LXXV, 1992: 52)

The President of the USCIB warned Hatchand Human Resources that the U.S. could be embarrassed by subjecting our "domestic laws and practices" to greater international scrutiny because the ILO supervisory machinery "is not in our control." (U.S. Senate 1985: 74, 76 & 101.) The USCIB relies heavily on what it considers "a seminal work" by its counsel, Edward Potter, who also cautioned that whether or not ILO conventions (Nos. 87 & 98) were declared self-executing, it would "afford no assurance that the United States would be found by the ILO to be in compliance with its international obligation." (Potter 1984: 78) The ILO, moreover, has taken the position that by membership in the ILO, "each member state is bound to respect a certain number of principles, including the principles of association which have become customary rules above the conventions." (International Labour Office 1985: 14)

The ILORelations Law

There have been charges brought against the U.S. government alleging the "inadequacy of U.S. labor legislation in safeguarding the principles of freedom of association." (ILO Bulletin Vol. LXXI, 1988: 85) The Freedom of Association Committee has considered charges that the combination of delays and weak remedies has permitted employers to violate the right of freedom of association (ILO Bulletin Vol. LXXI, 1988: 85); that it was unjust to limit mandatory injunctions (NLRA Section 10(L)) to certain union unfair labor practices (ILO Bulletin Vol. LXXV, 1992: 55); that the labor law which allows the permanent replacement of workers engaging in a lawful economic strike was a violation of the freedom of association (ILO Bulletin Vol. LXXIV, 1991: 15); that the U.S. Governmentfreedom of association (ILO Bulletin Vol. LXIV, 1981: 90); and that labor legislation for federal and many state employees was not in conformity with ILO conventions. (ILO Bulletin Vol. LXXVI, 1993: 99)

The Committeeenforcement power)identify serious inconsistencies between ILO human rights standards and U.S. labor law. The U.S. Government in all these and other cases reported by the Freedom of Association Committee, however, has denied all charges claiming, among other things, that "its laws are generally in compliance with ILO Conventions Nos. 87 & 98." (ILO Bulletin Vol. LXX, 1987: 14) During the Bush administration, moreover, the U.S. government attached to its responses to these complaints position statements prepared by the USCIB. Although the government said the USCIB observations were "independent" of its own, it asked the Freedom of Association Committee to take the USCIB material into full consideration." (ILO Bulletin Vol. LXXV, 1992: 36; Vol. LXXIV, 1991: 24)

Despite the U.S. Governmentinconsistencies between U.S. labor law and the right of freedom of association, U.S. labor relations law does violate the freedom of association in most fundamental ways. In great part this is because the statute and NLRB case law legitimize employer opposition to the organization of employees, collective bargaining, and workplace democracy. Employers have rights, of course, and the exercise of those rights often conflict with the exercise of the freedom of association. When rights conflict choices must be made. It is more than a matter of merely making lists of rights and it is not a simple matter of limiting rights only when their exercise interferes with the rights of others B an approach which creates the misleading impression that conflicting rights are evenly balanced. Despite decision-makers protestations about equalizing or balancing rights in U.S. labor relations law, moreover, rights are rarely evenly balanced and, in fact, in many situations should not be. In order to evaluate the choices being made, it is necessary to understand not only what hierarchy of rights guide decision-makers but also the nature of each of the rights involved and their relationship to each other. Section 8(c) and the Right of Freedom of Association

Among these conflicting rights, employer "free speech" has become "the primary instrument used by employers to discourage unionization and collective bargaining." (Summers 1998: 806) Edward Potter has advised the government not to sign ILO Convention No. 87 for several reasons one being that "Article 11 has been interpreted as foreclosing any interference in organizing rights, such as employer > free speechpermitted under the NLRA would be illegal under Convention No. 87." (Potter 1984: 44)

Employer anti-union speech during representation campaigns causes a clash of the right of freedom of association; the right of freedom of speech (employer, union, and employees); and property rights. The dominant hierarchy of rights established by NLRA and judicial decision-makers, particularly in the past 30 years, gives employer speech and property rights priority over employees reedom of association. Section 8(c) is treated as codifying a constitutional right whereas employees right to organize is "only" a statutory right trumped by the employer(Adams and Wyatt 1996: 37)

The legislative history of Section 8(c) confirms that there was a certain degree of semantic fraud in referring to representation campaigning cases as issues of employer free speech. The phrase concealed the real policy issue: the extent to which, if at all, an employer was to be permitted to exert economic power through speech in regard to employeeshoice of and participation in union. The policy choice made by Congress in Section 8(c) clearly favored employerspolicy from requiring employer neutrality in the early years of the Wagner Act to sanctioning active employer resistance to unionization (Gross 1995: 110-111.)

Evidence of this intent is manifest in three decisions made during the debates on the Taft and Hartley bills: the ultimate rejection of amendments that would have added a proviso stipulating that nothing in the speech provision was intended to interfere with employer or employee speech guaranteed by the First Amendment to the Constitution; (NLRB 1948: 984-986; 1432-1434); rejection of the Senate version of the speech provision that permitted the NLRB to use employers(NLRB 1948: 429-430) and final adoption of the House version that prohibited the Board from using as evidence against an employer any statement that standing alone, on its own express terms, did not threaten force of economic reprisal. (NLRB 1948: 299 & 324) As the House Minority Report charged, that provision went "far beyond mere protection of an admitted constitutional right" and "in no field of law are a manintention." (NLRB 1948: 375)

Property Rights and Freedom of Association

In this country, the historically rooted principles of employer property rights still override many of the most basic principles of the freedom of association. The Supreme CourtU.S. 793) however, conflicts with those traditional rights of property to the extent that it permits employee solicitation of union membership and distribution of organizational literature in non-work areas, on non-working time, as long as it does not interfere with production, discipline, or safety. The NLRB, with some limitations, extended the Republic Aviation standard to permit non-employee union organizers access to employer property. (Estlund 1994: 314)

NLRB vs. Babcock & Wilcox Co., 351 U.S. 105 (1956) was one of those cases where the Board had permitted access by non-employee union organizers to employer property. Pronouncing the distinction between employees and non-employees "one of substance," the Court ruled that "an employer may validly post his property against non-employee distribution of union literature if reasonable efforts by the union through other available channels of communication will enable it to reach the employees with its message . . ." 351 U.S. 105 at 112-113 (1956) In the years since, the Babcock & Wilcox alternative channels of communication rule has been applied by the courts and the NLRB "to exclude virtually all non-employee organizational activity" from private sector workplaces. (Gresham 1983: 111)

This is particularly true since 1992 when the Supreme Court in Lechmere, Inc. vs. NLRB, 112 S. Ct. 841 (1992), permitted an employer who made no claim that union activity would interfere with production, services, safety, security, or other business functions to exclude non-employee union organizers from the employerthat the exception to the Babcock rule "is a narrow one" and applies only where " the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them." It also held that a union such isolation is . . . a heavy one." 112 S. Ct. 841 at 849 (1992) (Emphasis in the original.)

Some Thoughts on Labor Policy and Freedom of Association

In 1992, the United Food and Commercial Workers and the AFL-CIO filed a complaint against the U.S. Government with the ILO among other things, that the Lechmere decision would "have a devastating impact on freedom of association rights" because "the Supreme Court has now declared that private property will assume absolute priority over rights of freedom of association wherever union organizers are involved." (ILO Bulletin Vol. LXXV, 1992: 40) The Government responded by saying only that the courts balance employersrights and the rights of employees under Section 7 and attached the USCIBmerely reaffirmed Babcock . (ILO bulletin Vol. LXXV, 1992: 46 & 52.) The Freedom of Association Committee requested the U.S. Government "to guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprize them of the potential advantages of unionization." That recommendation has been ignored. (ILO Bulletin Vol. LXXV, 1992: 55.)

What would need to be done to comply with the Committeerecommendation? First of all, the key question is not whether non-employee union organizers had a right to enter the employera right to receive information concerning their right to organize." (Gersham 1983: 122) Consistent with the principles of Republic Aviation, the choice in access cases is really a choice between freedom of association rights and an employerin a given situation. (Estlund 1994: 310) Given the vital need for access to the workplace in order to be able to exercise the freedom of association, an employer should be permitted to deny access to labor organizers only if the employer can show that it is necessary to do so to prevent interferences with production, to maintain discipline or safety, or for some other substantial reason. Babcock & Wilcox and Lechmere are not only destructive of the freedom of association but also are not needed to protect employerslegitimate interests. (Estlund 1994: 309, 334, & 338)

The overwhelming advantage employers have over unions in communicating to employees about unionization and collective bargaining B an advantage that discourages employees from exercising their freedom of association B is most evident under the A captive audience" doctrine which permits employers to hold campaign meetings at the workplace on working time while denying union organizers even access to the workplace. Livingston Shirt Corp., 107 NLRB 400 (1953) This violation of the freedom of association could be ended with no significant damage to employersby returning to the earlier NLRB doctrine requiring employers who deliver captive audience speeches to provide equal opportunity for a union to address employees on the employers

Concluding Observations

The U.S. government has not ensured the freedom of association at workplaces. In fact, with statutory provisions such as Section 8(c) of the NLRA it has enabled employers to resist the exercise of that right even more effectively. The fact that it permits private power to be exercised does not absolve the government of its responsibility to intervene when that private power is used to interfere with a human right such as the right to freedom of association.

This paper demonstrates, among other things, that the fundamental human right of freedom of association should trump employer property and speech rights at the workplace and that this could be accomplished without unfairly limiting or damaging legitimate employer interests. It is time to address our own violations of human rights at the workplace and to stop making false protestations about some mythical Adelicate balance" of employer, employee and labor organization rights that supposedly exists here.

References

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Estlund, Cynthia L. 1994. ALabor, Property, and Sovereignty After Lechmere." Stanford Law Review, Vol. 46, No. 2 (January), pp. 305-359.

Gresham, Jay. 1983. "Still As Strangers: Non-employee Union Organizers on Private Commercial Property." Texas Law Review, Vol. 62, No. 1(August), pp. 111-173.

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