2. Where Do Workers' Rights Come From?
The first answer most of us are likely to give to this question is: from the Constitution.
Every American likes to say to himself or herself, "I've got my rights." It's natural to suppose that our constitutional rights travel with us wherever we go.
But this answer is, unfortunately, wrong. The Constitution protects us only from action by the state, that is, the government. It does not protect us from private employers. If you work for a government, city, state or Federal, you can claim constitutional rights to freedom of speech, to freedom from unreasonable search and seizure, to due process, to equality before the law. However, in the private sector the employer has no legal obligation to respect your constitutional rights.4
In the private sector, when you punch in you leave your constitutional rights behind. In the private sector, you do not have a constitutional right to free speech: if your employer makes an unsafe product, and you individually "blow the whistle" on him by informing the media, you may legally be fired for doing so. Likewise, in the private sector you are not innocent until proven guilty. When an employer disciplines or discharges you, you don't stay on the job until the grievance is arbitrated. Instead, you are off work and lose pay, and get the money back only if you win the grievance.
In the private sector the Constitution does not protect us, but there are two other sources that give us some of the same protections we enjoy, at least on paper, outside the workplace.
One source of rights in the private sector is the union and the collective bargaining agreement. Seniority, for instance, comes from this source. But seniority provides only partial equality before the law.5 It ensures that the person who has worked longest will be fired last, but it does not mean that foremen will be governed by the same rules as hourly employees. If an hourly worker starts a fight, he or she is likely to be fired because of a shop rule against fighting. But that rule doesn't necessarily apply to the foreman when he starts a fight. Thus the union and the collective bargaining agreement create a halfway citizenship, but not a full citizenship.
A second source of rights in the private sector is Federal law. These rights were created by struggle. For instance, the struggle for the eight-hour day began at least as early as 1886, when a sizable portion of the entire American labor movement took part in a political strike on its behalf and the international labor holiday, May Day, was one result. The eight-hour day was finally recognized by Congress more than fifty years later in the Fair Labor Standards Act (the Wages and Hours Act) of 1938.
A partial list of other rights recognized by Federal law include:
1. The right to engage in concerted activity for mutual aid and protection (Section 7 of the National Labor Relations Act).
2. The right not to be enjoined by Federal courts when engaged in such activity (Section 4 of the Norris-LaGuardia Act).
3. The right to refuse to perform abnormally dangerous work (Section 502 of the National Labor Relations Act, and the Occupational Safety and Health Act).
4. The right to equal pay for equal work (the Equal Pay Act).
5. The right to overtime after forty hours of work in a week (the Fair Labor Standards Act).
6. The right not to be discriminated against because of race, sex, religion, national origin, pregnancy, or age (Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, and the Age Discrimination in Employment Act).
7. The right to reasonable accommodation if disabled but qualified to do particular work (the Americans with Disabilities Act).
8. The right to 12 weeks of leave in any 12-month period because of a serious health condition (the Family and Medical Leave Act).
9. The right to free speech about union affairs, and to a minimum of due process when disciplined by a union (Title I of the Labor Management Reporting and Disclosure Act).
10. The right to pension security (Employment Retirement Income Security Act).
Most of these rights are discussed in more detail later in this booklet.
"Waiver" of statutory rights
Collective bargaining makes it possible for working people to enforce rights through their unions. But collective bargaining also sometimes takes away rights that workers would otherwise enjoy because of laws like those just cited.
The leading example is the right to strike. Close to 100 per cent of collective bargaining agreements contain a promise not to strike (and usually also, not to slow down or otherwise interfere with work on the shop floor) during the life of the contract.
You might wonder how this is possible, since Section 13 of the NLRA stated explicitly: Nothing in this Act shall be construed so as either to interfere with or impede or diminish in any way the right to strike."
The reality is that within a dozen years after passage of the NLRA in 1935 the right to strike was interfered with, impeded, or diminished in the following three ways:
1. In 1938 the Supreme Court decided a case called Mackay Radio. The Court distinguished two kinds of strikes: strikes prompted by the employer's unfair labor practices; and ordinary economic strikes. The Court held that economic strikers could be "replaced," that is, permanently discharged.
2. In 1947, in Section 8(b)(4) of the Taft-Hartley Act, Conmgress prohibited secondary strikes and boycotts solicited by unions or their agents.
3. In 1936, before either the courts or Congress got (no pun intended) into the act and only a year after passage of the NLRA, negotiators for the CIO unions in auto and steel agreed to prohibit strikes during the life of their collective bargaining agreements.6 Such surrender or "waiver" of the right to strike during the life of the contract has become one of the two standard pro-management provisions of collective bargaining agreements (along with the management prerogatives clause that permits management unilaterally to close the plant).
How then do courts justify the abrogation of the right to strike by labor-management negotiators? The answer is twofold. The courts often say: "You have the right to strike, but if you choose to give it away by ratifying a collective bargaining agreement with a no-strike clause, you have the right to give it away, too." This makes no sense because the ordinary worker has very little control over what goes into his or her contract. It is pure fiction to say that the ordinary American has knowingly and voluntarily given up, or "waived," the right to strike.
The courts also often say: "It's all right to take away your right to strike because now that you have a union, you don't need to strike." The assumption here, which the United States Supreme Court has put in so many words, is that Congress gave workers the right to strike and picket only to help them form unions. Once unions come into existence, according to this theory, workers should be prepared to let the union represent them rather than continuing to act on their own behalf. This argument, too, is erroneous because there is nothing in the legislative history of the labor statutes to justify the conclusion that the worker's right to concerted activity ends when a union is elected or when collective bargaining begins.
4The Thirteenth Amendment to the Constitution appears to be an exception to this generalization. Professor James Pope of Rutgers Law School points out that the Thirteenth Amendment prohibits slavery and involuntary servitude, without regard to who creates these conditions. See James Gray Pope, Peter Kellman and Ed Bruno, "Free Labor Today," New Labor Forum (Spring 2007), pp. 8-18; and James Gray Pope, "Labor's Constitution of Freedom," Yale Law Journal, v. 106 (1997), pp. 941-1031. Thus it might be possible to argue that when a private employer and a union negotiate a no-strike clause, they violate the Thirteenth Amendment even though there is no "state action."
5Indeed some have argued that seniority promotes inequality, especially in layoffs. Mia Giunta, an organizer for the United Electrical Workers (UE), describes a Connecticut plant she organized called F-Dyne Electronic. The workers were African American, African, Puerto Rican, Portuguese, Cuban and Mexican, and almost all women. She recalls: "Under the contract, the layoffs went according to seniority. We felt terrible, thinking of some of the workers who would be put out on the street. . . .
omebody suggested, 'We'll all work a few hours less each week. That way everybody can stay. Everybody will have health insurance.' . . . [A]nd that became the tradition in that factory." Mia Giunta, "Working-class people have a very deep culture based on solidarity and trust," in The New Rank and File, ed. Lynd and Lynd.
Similarly, in Illinois coal fields in the 1920s, local unions "adopted the rule that no man is going to work overtime without showing cause why no one else was available to share the work. . . . We got the company to go along by getting the key men in our union to cut down the production." Joe Ozanic, quoted in Carl Oblinger, Divided Kingdom: Work, Community and the Mining Wars in the Central Illinois Coal Fields During the Great Depression (Springfield: Illinois State Historical Society, 2004), p. 24.
6John Sargent, first president of the 18,000-member Local 1010, United Steelworkers of America, at Inland Steel in East Chicago, Indiana, makes the extraordinary assertion that workers there had more power before the union was recognized and before there was a collective bargaining agreement with a no-strike clause. "Without a contract, without any agreement with the company, without any regulations concerning hours of work, conditions of work, or wages, a tremendous surge took place. . . . Without a contract we secured for ourselves agreements on working conditions and wages that we do not have today." John Sargent, "Your Dog Don't Bark No More," in Rank and File, ed. Lynd and Lynd, p. 107.