A Civil Right to Unionize
By RICHARD D. KAHLENBERG and MOSHE Z. MARVIT
NY Times Op-Ed: 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 Broadly shared prosperity has been replaced by winner-take-all plutocracy.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.
Sent: Tuesday, February 28, 2012 10:00 AM
To: epearlag@earthlink.net
Subject: We did it -- 14-0 city hall vote & what it means
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What is the meaning of our 14-0 victory at City Hall?A changed law, civil rights, our generation's fight, the role of organizing
Last Wednesday, the City of Los Angeles took an historic step toward becoming a place that upholds the civil, human and educational rights of students and their families and promotes policies that reinvest in our youth to keep them in school and away from a jail cell. With council chambers packed by over 200 of the CRC’s allies, affiliated teachers, student members and student leaders, the city passed by a vote of 14-0 a proposal by Councilmembers Tony Cardenas and Bernard Parks to amend LA Municipal Code 45.04 (“Daytime Curfew”) to roll back the punitive ticketing of youth for tardiness and truancy. This amendment
This amendment also codifies the important agreements between us, LAPD, LA School Police Dept, and the County Juvenile Court that we secured over the past year. While our organization does not agree that city fines or court fees are necessary for dealing with the more serious attendance or truancy issues among youth, we believe this amendment to LAMC 45.04 takes us in the right direction. We will continue to advocate and organize for the more complete alternatives to fines. Our generation's fight for civil rights We are proud to say that our organization has led the grassroots struggle to roll back LAMC 45.04 over the past six years in various schools and neighborhoods throughout the City and County of Los Angeles. Why did we engage thousands of youth, parents, teachers, community members and allies on this issue? We took on this campaign because LAMC 45.04 is an outrage that goes beyond the tickets themselves. We felt a win against these tickets would be a strong contribution to the broader movement against the school to prison pipeline that we are part of. This “daytime curfew” code has caused severe educational, civil and human rights harms, especially for our Black and Brown families. By systematically enabling and encouraging punitive ticketing and suppressive school policing, this curfew law has been a literal gateway to LA’s jail track for many of our youth. LAMC 45.04 is also a powerful symbol of how twisted our social and educational policies have become. We ticket students who are making an effort to go to their underfunded, overcrowded schools. We push out from school those struggling students who need our support the most. And instead of using the energy of youth, parents and teachers to solve these issues, we hand over those responsibilities to judges, courts and law enforcement. At the Community Rights Campaign, we share a vision with many of our partners and allies in this struggle. One of the defining civil rights questions for our generation is this: Will we stand up for education, not incarceration? We live in a state that invests more in prisons than higher education. The United States has over 2.4 million people behind bars, with another 7 million tied to the incarceration system through court supervision. At the same time, we are cutting teachers, counselors and important programs from our schools to the point where many schools now have more police than guidance counselors. It’s not rhetoric to say that our schools are preparing our youth for prison, not a college or career path. To break from these policies of disinvesting from our youth and criminalizing them, to advance toward policies that truly reinvest in our youth, to keep them in school and away from a jail cell—this is key to our generation’s fight against separate and unequal education. Giving thanks This week, Los Angeles made history and many people and institutions need to be thanked. For their leadership, we thank Councilmember Tony Cardenas and his staff, Judge Michael Nash, and LAUSD Board President Monica Garcia. For their critical support, we thank Councilmembers Bernard Parks and Mitch Englander, and LAUSD Board Members Nury Martinez, Steve Zimmer, Bennett Kayser and Richard Vladovic. We also appreciate the support of all the city councilmembers who voted for the amendment, and the role played by the LA School Police Dept and LAPD, with their openness to principled negotiation and to following the community’s lead. We especially thank our partners ACLU and Public Counsel, our allies in the LA Chapter of the Dignity School Campaign—CADRE, Children's Defense Fund and Youth Justice Coalition—and the over three dozen educational and social justice allies who came to testify with us at city hall for the big vote. We also send a warm "Thank you!" to the thousands of supporters who watched our Youtube video and signed our online petition to help a make a difference. But most importantly, we want thank the hundreds of young people, parents, teachers, organizers and leaders who are the Community Rights Campaign. When we started this campaign, people told us we could never win such a direct challenge to public enthusiasm for the war on crime, the politics of blame, and harsh zero tolerance policies. Last Wednesday, we could stand and celebrate on the steps of City Hall because we built a movement that changed the debate. We are the change we can truly believe in. Black and Brown communities and grassroots groups in cities around the country will be able to use this victory in their own struggles. The real civics lesson We’ve gathered for you some of the extensive media coverage that is rolling in here. And please take a moment to post a note to our student leaders and members on our facebook page. They deserve more than the media’s portrayal of them as “helpless” victims or curious bystanders who came to city hall on class field trips for a “civics lesson”—when it was they who gave the real civics lesson. Thank you for standing with us! The CRC Steering Committee—Haewon Asfaw, Damon Azali-Rojas, Manuel Criollo, Patrisse Cullors, Tekoah Flory, Ashley Franklin, Carla Gonzalez, Lissett Lazo, Alejandra Lemus, Barbara Lott-Holland, Eric Mann, Zoe Rawson, Andrew Terranova
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