"A Civil Right to Unionize"

Union Rights are Civil Rights:

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?