4. A Rank and Filer's Bill of Rights
This chapter describes only rights that exist, at least to some extent, in the law as it now stands. Don't assume, because we don't mention some right that you consider valuable, that we believe it to be unimportant.The Right to Act Together
It is strange, in our individualistic society, to encounter a right to act together with others. Section 7 of the NLRA nevertheless proclaims a right "to engage in . . . concerted activities for the purpose of . . . mutual aid or protection."
These words reflect decades of legally unprotected collective struggle by working people. The heart of the labor movement -- the reason that, with all its failings, the labor movement still in some sense represents a new society within the shell of the old -- is the experience, forced on working people by necessity, that "an injury to one is an injury to all." Trade union officers sign their letters "fraternally yours." That they do so is a symbol, just as Section 7 is a symbol, of the reality of solidarity that underlies these outward forms.
As we've seen, the right to act in concert made its way into the law in the Norris-LaGuardia Act of 1932. Section 4 of that statute forbade Federal courts to enjoin strikes, picketing, and the like. When the NLRA was young it was commonly interpreted to protect sympathy strikes and boycotts. Judge Learned Hand held in NLRB v. Peter Kohler Swiss Chocolate Co.
, 130 F.2d 503, 10 LRRM 852 (2d Cir. 1942):
When all the other workmen in a shop make common cause with a fellow worker over his separate grievance, and go out on strike in his support, they engage in a "concerted activity" for "mutual aid or protection," although the aggrieved workman is the only one of them who has any immediate stake in the outcome. The rest know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping; and the solidarity so established is "mutual aid" in the most literal sense, as nobody doubts. So too of those engaging in a "sympathetic strike" or secondary boycott; the immediate quarrel does not itself concern them, but by expanding the number of those who will make the enemy of one the enemy of all, the power of each is vastly increased.
The right to act together is the right on which all other workers' rights depend. It is the enforcer, the working person's First Amendment. Acting in concert may take the form of union organization, but it may also take the form of shopfloor struggle in the absence of a union, or alongside a union.
Section 7 Under Attack
As one might expect, following the great upheaval of the 1930s the Congress, the National Labor Relations Board and the courts have done their best to limit workers' right to engage in concerted activity. This has been especially the case in the last few years when a Republican president has packed the Board with pro-business lawyers, but it is a long-run trend.
For example, in workplaces where a union has been recognized, the Board and the courts tend to protect only concerted activity approved by the union. Earlier we explained that from the very beginning of the CIO, unions have been permitted to "waive" the right to strike by agreeing to no-strike clauses in collective bargaining. In a leading case at a San Francisco department store the union was permitted to give up the fundamental right to picket. There African American workers who considered themselves to be discriminated against asked their union to file a group grievance. The union refused. So the workers, when off work and on public property, set up a picket line asking potential customers not to shop at the store until the issue of discrimination was resolved. The workers were discharged, and first the NLRB, and then the Supreme Court, held that their discharge was lawful because they should have filed individual grievances. Emporium Capwell Co. v. Western Addition Community Org.
, 420 U.S. 50 (1975).
The powers that be have also promoted the notion that the right to act in concert is a "collective" right, belonging to every one together but not to any one individual. A single worker's statement, "this is a hell of a place to work," was initially held by the Board to be an "indispensable preliminary step" to group action but was found by a reviewing court to be "mere griping," hence unprotected. Likewise the authorities have done their best to restrict the objects on behalf of which workers may legally act in concert to narrowly self-interested, rather than class-wide, ends. A strike protesting trade relations with Cuba was held to be unprotected, as was wearing a button with the words, "Dump Nixon."
Yet Section 7 remains a significant source of protection which one of us has called the best-kept secret in labor law. It has repeatedly been held that an individual's protest activity can be sufficiently linked to the general welfare that it should be considered "concerted." Here are some recent cases you can cite. When an individual worker raised questions at a staff luncheon regarding the relationship between an employer's evaluation system and pay raises it was held to be protected by Section 7. Air Control Transp.
, 340 NLRB 688, 173 LRRM 1429 (2003). A single employee seeking to enforce a right he or she "honestly and reasonably" believes is conferred by a collective bargaining agreement is engaged in protected concerted activity, even if the employee has his or her own interests primarily in mind and is mistaken as to his or her rights. See, for instance, Temp-Rite Air Conditioning Corp.
, 322 NLRB 767, 154 LRRM 1017 (1996) (employee's objection to pay cut was protected concerted activity); Philips Petroleum
, 339 NLRB 916, 172 LRRM 1433 (2003) (employee inquiring about higher wage he believed applied to him); Lance Investigation Serv.
, 338 NLRB 1109, 174 LRRM 1151 (2003) (employee seeking vacation pay). As we will see in a moment, when an individual worker's self-activity concerns health and safety it is especially likely to be viewed as protected by Section 7.
Similarly, activity on behalf of class-wide objectives has frequently been protected under Section 7. In Eastex v. N.L.R.B.
, 437 U.S. 556 (1978), the Supreme Court held that Section 7 protected passing out a newsletter that urged workers to write to their legislators and register to vote. The Court said that the phrase "mutual aid or protection" is intended to protect workers when they engage in conmcerted activity in support of employees of another employer. Moreover, the Court declared, workers are protected by Section 7 when they seek to improve their situation by means other than union organization and collective bargaining. The Congress that passed the NLRA "knew well enough that labor's cause is often advanced on fronts other than collective bargaining and grievance settlement within the immediate employment context."
This remarkable language offers broad protection to agitation on behalf of the working class as a whole, and is still good law. Thus, an individual employee who told a person picking up an order for a newspaper where employees were on strike, "You work for the scab newspaper," was engaged in protected concerted activity because use of the term "scab" amounted to making common cause with the Section 7 activity of the employees of another employer. Office Depot
, 330 NLRB 640, 163 LRRM 1169 (2000).
Seeking Section 7 Protection
Often protection is available to workers who frame their action so as to bring it within Section 7.
One of the authors was involved in supporting a strike by a Buick car dealer. An anti-labor judge issued an extraordinarily broad injunction: he found in contempt one picketer who brought a cup of coffee to another, thus momentarily exceeding the number of pickets allowed at the workplace entrance. But dramatically effective strike support was developed nonetheless. First, at times in the week when sales activity was intense (such as Saturday afternoon) union members from all over the area staged "honk-a-thons," driving slowly past the struck workplace, signs displayed and horns blaring. Second, since the Taft-Hartley Act forbids secondary activity by "a labor organization or its agents," strike supporters gathered on the courthouse steps as individuals to call on the community to suspend for a time the purchase of Buicks.
The following guidelines will tend to give you the best chance of bringing your protest activity within the protection of Section 7:
1. Act together.
2. If you have to act alone, tell management that you are acting for the other employees in your department or workplace, as well as for yourself.
3. Even if your action concerns workers elsewhere, or a political object like legislation, the Board will be more likely to consider what you do protected if you show -- preferably at the time of the action -- how the action affects the working conditions of yourself and your fellow employees.
Often it appears that the employer administered discipline for more than one reason, only one of which involved concerted activity arguably protected by Section 7. In a 1980 case called Wright Line
the Board adopted an approach later approved by the Supreme Court. In "dual motive" cases the question to be asked is: Would the discipline have been administered anyway if the concerted activity had not occurred? A good way to prove this is to show that if X is the activity that does not involve Section 7, other workers guilty of X were not disciplined.
The Right to Speak and Leaflet
At the threshold of any concerted activity there is the need to communicate. The needed communication can take many forms: talking, speaking through a megaphone, writing and passing out a leaflet, wearing a button, posting a notice on a bulletin board, holding a press conference,.
There is what might be called a sacred contagion about such communication. One of the authors coordinated Freedom Schools in Mississippi during the summer of 1964. Later, as a law student, he read the case of Tinker v. Des Moines
, in which the Supreme Court said that a high school student who wore a black armband to school to protest the Vietnam war was engaged in speech protected by the First Amendment, was not disrupting school activities, and could not lawfully be sent home. He noticed that the Supreme Court repeatedly cited a case from a Federal court of appeals in the South, Burnside v. Byars. Burnside
turned out to be about the first day of public school in Fall 1964 in Philadelphia, Mississippi, the community where civil rights workers Chaney, Goodman and Schwerner had been murdered in June. On that day African American children came to school wearing buttons that said "SNCC" and "One Man, One Vote." They were sent home. The court said that was unlawful. Thus black youngsters in the Deep South made it possible for a white student in Iowa, a few years later, to protest the war.
Union buttons and emblems can be worn anywhere in the plant, during work time as well as during breaks. In kinds of work where the button wearer is in contact with the public, like a restaurant or a hospital, the right may be restricted. The main restriction is on messages that the Board or a court finds so provocative that they disrupt production.
Disruption is in the eye of the beholder. The first editions of this booklet offered the example of a button that said "Ma Bell is a Mother": workers who wore this button were found to be unprotected when the telephone company fired them. Later some disgruntled steelworkers showed up at the office of the author of those first editions. Their strike had been terminated by the national union in a way that they didn't like. They wanted to wear T shirts that displayed a large screw over the word "Again." The author advised against doing so. The workers did it anyway and were never disciplined.
In general, excessive profanity or insubordination will cause buttons or emblems to lose section 7 protection. In a 2007 decision, a nonunion construction firm did not violate the Act when it directed an employee to remove from his hard hat an emblem which showed "someone or something urinating on a rat that was apparently designated non-union."
Talking about joining a union, or "soliciting" as it is known in the law, includes passing out union authorization cards. It is protected in working areas during non-working time, that is, during coffee breaks, at lunch time if you eat near your machine, and so on.
So long as one stays on a public sidewalk or right of way, leafleting is governed by the First Amendment. Unless restricted by a lawful local ordinance no leaflet is needed to leaflet on public property. The leafleter who takes reasonable care not to block the sidewalk, and who does not become involved in incidents of violence, has the right to leaflet undisturbed. (Of course the police may interfere regardless of the law. The leafleter has a better chance to be left alone if within the law, however.) Once the leafleter leaves public property and enters onto the property of the employer, the rules change. If the employer is a public employer then the First Amendment continues to apply, but speech inside the workplace may be more restricted than speech on the sidewalk because of considerations of time, place, and manner.
If the employer is a private employer and engages in interstate commerce of any significance, then the NLRA including Section 7 is applicable. Here are answers to some common questions about Section 7 and leafleting.
Can I leaflet anywhere, any time? No, you may only leaflet in non-working areas such as the parking lot, locker rooms, clockhouse, cafeteria, or outside the gate. Leafleting in working areas is unprotected even during non-working time. The theory is that such leafleting might cause litter that would interfere with production.
May I leaflet if I am off-duty or laidoff? Yes, but only in out of doors non-working areas, such as a parking lot.
Do union organizers have the same rights as employees to leaflet on company property? No.
Can the company call the police and have me thrown off the property for trespass? If you are on the property of a company where you work, probably not.
There is no legal right to use bulletin boards. However, an employer may not discriminate in whatever use of the bulletin boards is permitted. If a company permits employees to post material about blood drives or personal "for sale" items, it must also allow them to post notices about (for example) union meetings. And if a union has bargained with the company for the right to use bulletin boards. it must allow rank and filers to post material critical of the union.
In general, speech about workplace problems at a press conference or other public occasion is concerted activity protected by law. Workers should attempt to speak accurately and without unduly disparaging either the employer or the employer's product.
Magnavox and the Object of Speech Activity
Section 7 law gives workers more protection to communicate than to act. A union is allowed to bargain away the right to strike. A union is not allowed to bargain away the right to distribute leaflets. N.L.R.B. v. Magnavox Company of Tennessee,
425 U.S. 322 (1974).
Finally, speaking and leafleting will be found to be protected only if their objects are considered appropriate for employees. The Board has held advocacy of an Employee Stock Ownership Plan to buy out the employer to be unprotected by Section 7 since the proposal did not "advance employees' interests as employees, but rather advances employees' interests as entrepreneurs, owners, and managers."The Right to Grieve and Briefly to Stop Work
"To grieve" is more than "to file a grievance." Filing a grievance is filling out a paper and giving it to someone else to process. To grieve is to express a protest. It can be effectuated through actions as well as through words; it will be more effective if it is not done alone; it need not be limited to matters contained in the contract; above all, it remains in the control of the aggrieved worker and friends.
Discharge or discipline of employees for grieving is generally held to be a violation of the Act. In the words of the Bureau of National Affairs' Developing Labor Law
: "Assembling employees to present grievances, filing of grievances by employees [to protest sexual harassment] in a manner that bypasses the union, grieving under a collective bargaining agreement by probationary employees, and filing of numerous grievances, have all been viewed by the Board as concerted activity protected by Section 7."
When a group of employees stop work in order to present a problem to management it becomes a de facto
work stoppage. In a case where workers refused to answer calls for 20 minutes, the Board held that "when an in-plant work stoppage is peaceful, is focused on a specific job-related complaint, and causes little disruption of production by those employees who continue to work," employees are "entitled to persist in their in-plant protest for a reasonable period of time." TPA, Inc. fka Benesight, Inc.
, 337 NLRB 282, 173 LRRM 1533 (2001), quoting Cambro Mfg.
Co., 332 NLRB 634 (1993).
Brief work stoppages will be assessed on a case by case basis. A one-hour work stoppage in the lunchroom was protected, HMY Roomstore, Inc.,
334 NLRB No. 119, 177 LRRM 1240 (2005), but a 12-hour stoppage held outdoors on company property was unprotected because of its duration. In Bethany Medical Center,
328 NLRB 1094, 162 LRRM 1403 (1999), employees of a cardiac cathaterization laboratory walked off the job 15 minutes before the first scheduled procedure of the day. The Board held that their action was protected because the routine nature of procedures scheduled for that day, the lack of emergency patients, and other specific circumstances indicated that the work stoppage did not create an imminent danger of harm. Discharged striking workers were found to have engaged in protected concerted activity when they protested a supervisor's treatment of employees because the strike did not disrupt the employer's operation of the warehouse. Rhee Bros.
, 343 NLRB No. 80, 176 LRRM 1357 (2004).The Right Not to Cross a Picket Line
In the absence of a "waiver" during collective bargaining, employees who refuse to cross another union's lawful picket line are generally engaged in protected activity.
However, the right to picket like the right to strike may be waived, that is, given up. Some cases hold that such a waiver must be expressed in clear and unmistakable language, but others indicate that bargaining history and past practice can be used to infer intent. Indeed a broad no-strike clause has sometimes been held to waive the right to picket unless evidence can be produced that shows an intent to protect picketing.
Moreover, how is a worker who suddenly encounters a picket line in the course of his or her daily rounds -- say, as a delivery driver -- to know whether the picket line is lawful? The Board and the courts may not make that determination until months or years in the future.
All in all, this is one of those situations where one has to act first and hope that the law will be helpful. There are still some communities in the United States where people say, "Our family doesn't cross picket lines."The Right to Refuse Unsafe Work
Second only to the right to equal treatment (see below), the right to refuse unsafe work may be the right best protected by labor law.
To begin with, Section 502 of the NLRA -- which the Taft-Hartley Act did not change -- states that "the quitting of labor by an employee or employees in good faith because of abnormally dangerous conditions" shall not be considered "a strike under this Act." Thus, a work stoppage over health and safety is not necessarily prohibited by a contractual no-strike clause. Thus also, this particular kind of activity is protected even if undertaken by a single worker.
The protection the Act gives to protests over health and safety is dramatically illustrated by two Supreme Court cases. In NLRB v. Washington Aluminum Co.
, 370 U.S. 9 (1962), the Supreme Court enforced a Board order reinstating with back pay seven employees discharged for walking off their jobs without permission when they claimed that the shop was too cold to work. NLRB v. City Disposal Sys.
, 465 U.S. 822, 115 LRRM 3193 (1984), concerned a workplace where a collective bargaining agreement contained language about health and safety, and a single truck driver refused to drive a truck that he belived to be unsafe because of faulty brakes. The Supreme Court held that this was a protected act because it implemented the "concerted activity" of negotiating the contract.
Many more recent cases might be cited in accord with these two. In Odyssey Capital Group,
337 NLRB 1110, 170 LRRM 1387 (2000), employees engaged in concerted activity when they refused to perform work based upon the belief that the work was a safety hazard. In Magic Finishing Company,
323 NLRB 234, 154 LRRM 1230 (1997), as in Washington Aluminum,
workers who walked off the job to protest unberably hot conditions were held to have engaged in protected activity.
Cumulative, Slow-Acting Danger to Health and Safety
As compared to a mine roof that may be about to come down or wire mesh through which a worker might fall to his death, the danger to health and safety posed by toxic chemicals in the workplace atmosphere presents a different kind of hazard. Cases like those cited above, or Whirlpool Corp. v. Marshall,
63 L.Ed.2d 154 (1980), the wire mesh case, involve imminent
danger. The same is true of a Department of Labor Rule, 29 CFR [Code of Federal Regulations] 1977.12(b), holding that an employee may refuse to perform an assigned task if "there is insufficient time, due to the urgency of the situation, to eliminate the danger through resort to regular statutory enforcement channels."
What if there is no immediate danger but conditions exist that threaten the employee with sickness or death in the long run, such as "black lung" among coal miners or "brown lung" in textile plants?
One of the authors experienced the possibility of affecting such situations without resort to government agencies or the courts. Four workers alleged chemical poisoning at an automobile assembly plant. On the basis of obituaries in the local press, they prepared what they called the "Lordstown Memorial" on which the names of former workers at the plant and their ages at time of death were set out in black Gothic lettering. The display was made public at a press conference and attracted a great deal of media attention. The company and the union thereupon undertook an epidemiological study which showed that a former worker at the plant was about 1.5 times more likely to die of cancer than a person in the general population of the area.
There have begun to be NLRB and court decisions that can support such campaigns. Avondale Indus.
, 329 NLRB 1064, 165 LRRM 1228 (1999), found circulation of a petition concerning perceived long-term health hazards to be protected. In TNS, Inc. v. NLRB
, 296 F.3d 384, 170 LRRM 2474 (6th Cir. 2002), it was held that Section 502 applies whether or not there exists a contractual no-strike provision and that workers who strike in good-faith belief that their working conditions are abnormally dangerous may not lawfully be replaced.The Right to be Represented
The point of view of this little book is that the ultimate security of a worker is the willingness of those who work together to act together in solidarity. Yet there are times when one also wishes for the legally-protected presence of a steward or fellow worker as an advocate or witness.
Similarly, whatever problems membership in a union may sometimes present, it is to the individual worker's advantage that the employer be legally required to recognize and deal with whatever entity represents some or all of the workers on the job.
Finally, just as a client always retains the right to instruct and, if absolutely necessary, dismiss a lawyer, so workers must be able to ensure that they are not just represented, but fairly represented.
The Right to the Presence of A Steward or Fellow Worker
The Supreme Court has held that in a unionized workplace an employee has a right to ask for union representation at any interview with management that can reasonably be expected to lead to discipline. NLRB v. Weingarten
, 420 U.S. 251 (1975).
A series of subsequent decisions have fine-tuned exercise of this right. Some of the ground rules are:
1. The employee must request the presence of a union representative. The employer has no obligation to inform an employee of his or her Weingarten
rights. Nor can a union trigger the right to representation on the employee's behalf.
2. The employee need not be sure that a requested interview will lead to discipline. Weingarten
only asks you to have a reasonable belief. If the foreman says, "Come into my office," that should be enough.
3. If a union representative requested by the employee is available, the employer may not substitute another representative. But an employer need not postpone an interview because a union representative desired by the employee is unavailable for reasons for which the employer is not responsible, if another union representative is available.
4. The employee does not have the right to postpone a disciplinary interview in order to consult an attorney.
5. If the employer refuses to allow a union representative to be present, the employee may decline to take part in the interview, in which case the employer may proceed to impose discipline, or the employee may take part in the interview without representation.
6. An employee may invoke his or her Weingarten
rights and ask for union representation after an interview has begun.
7. An employee who has invoked Weingarten
has a right to notice of the matter under investigation and to a pre-interview consultation with his or her representative.
8. Unless the discipline is for the act of requesting representation for the disciplinary interview, a violation of Weingarten
does not require the employer to reinstate a discharged worker with back pay. However, the burden is on the employer to show that discipline given an employee is not based on information obtained during an unlawful interview.
The question arises, in the typical workplace in the United States where there is no recognized union, may a worker insist on the presence of a fellow worker at an interview reasonably expected to lead to discipline?
The NLRB has gone back and forth on this issue. As this is being written, the Board with a conservative majority has answered, No. IBM Corp.
, 341 NLRB 1288, 174 LRRM 1537 (2004).
Minority or Members-Only Unionism
The newest big idea in labor law is that "in workplaces where there is not yet a majority/exclusive representative, collective bargaining on behalf of the members of a minority labor union is a protected right fully guaranteed by the" NLRA. 1
This proposition probably will not be presented to the National Labor Relations Board and the courts until a new president changes the composition of the Board. If approved, it would open up several dramatic possibilities.
First, even within a conventional strategy of seeking exclusive representation by a single union supported by a majority of workers in an appropriate bargaining unit, minority or members-only unionism would force unions seeking majority support to act as well as to make promises about what they would do after selection as an exclusive bargaining representative.
Second, many of the problems associated with exclusive representation could be avoided if any number of workers could lawfully require the employer to negotiate with them. At present, workers have few remedies for a negligent or inattentive union other than the nuclear bomb of decertification. Members-only unionism would make it possible in the United States, as in mmny European countries, for there to be more than one union in the same workplace, and therefore, "a wide choice of opportunities regarding the selection of bargaining representatives and different bargaining formats." 2
The Right to Fair Representation
Suppose, in a unionized workplace, the company violates the collective bargaining agreement. The member writes up a grievance but the union "forgets" to file it on time, or presents the case in a lackadaisical way, or takes the grievance through the first steps of the grievance procedure and then drops it before arbitration. Is there anything the member can do?
The answer is, Yes and No.
Under Section 301 of the Taft-Hartley Act, a worker has a right to go into state or Federal court to enforce a collective bargaining agreement against an employer. But there's a Catch-22. On top of all the other problems connected with a law suit, such as expense and delay, to prevail in court the worker must show that he or she was "unfairly represented" by the union.
The Supreme Court has held that a union is guilty of unfair representation only if its conduct is "arbitrary, discriminatory, or in bad faith." Thus, for example, it is not enough for a union member to show that a grievance which the union refused to arbitrate was probably a winner. It must also be shown that the union had an improper motive in deciding not to proceed to arbitration: for example, that the grieving member belonged to a dissident caucus within the union.
The first editions of this booklet offered an extended discussion of the law of unfair representation. It now seems to us that this convoluted area of the law is much less promising than the idea of minority or members-only unionism promoted by Professor Morris. We should attempt to act on the idea of members-only unionism, for example by presenting a grievance as a group grievance that causes a temporary shutdown in production (see above), and by insisting on discussion and resolution of particular problems (such as the employer's failure to arbitrate a grievance) even before the employer is obligated to negotiate a complete contract.The Right to Equal Treatment
A sense of entitlement to equal treatment is universal among persons resident in the United States. When we feel passed over or singled out without good reason, we instinctively respond, "That's not fair!"
A first cautionary observation is that in order for unfair treatment to become "legally cognizable," that is, something the law can recognize, the person or persons alleging discrimination must do so on the basis of membership in a so-called protected class. Nevertheless, the ongoing legal upheaval caused by the civil rights movement of the 1960s has resulted in protection for many vulnerable groups. Title VII of the Civil Rights Act of 1964 forbade discrimination in employment because of an individual's "race, color, religion, sex, or national origin." Later statutes prohibited discrimination based on age, disability and pregnancy.
The greatest problem in this area is not so much what exists on paper but enforcement. The administrative agency created to process Title VII claims, the Equal Employment Opportunity Commission (EEOC), has an enormous backlog. It is critical that workers keep in mind what they can do for each other: thus in the experience of the authors, steelworkers can look out for fellow workers approaching retirement, warehouse workers subject to quota requirements may insist that the quotas apply to groups of workers (with varying capacities) not to each individual, and a pregnant employee may be secreted and protected by fellow workers in a part of the workplace where supervisors rarely come.
Griggs and the Question of Intent
In every area of anti-discrimination law -- schools, voting, juries, jobs -- the courts have wavered as to whether the discriminatee must prove that the discriminator had an intent to discriminate. Intent is hard to prove. If intent is required, the civil rights plaintiff will win less often.
The problem has been differently resolved as to education, where an intent to segregate is required and has crippled enforcement, and as to employment. Generally, an intent to discriminate need not be shown in an employment case because of the Supreme Court decision in Griggs v. Duke Power
, 401 U.S. 424 (1971).
In Griggs, the Supreme Court held that the employer's requirement that job applicants have a high school education, when that requirement was not shown to be "significantly related" to performance on the job and had the effect of screening out African Americans at a "substantially" higher rate than whites, constituted discrimination. A Title VII plaintiff need not prove discriminatory intent but only discriminatory effect, the Court held. The Court stated: "The Act proscribes not only overt discrimination but also practices that are fair in form but discriminatory in operation." It also declared: "Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to 'freeze' the status quo of prior discriminatory employment practices." And still again: "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation."
The McDonnell Douglas Paradigm
The Supreme Court explained in McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973), how Griggs should be applied in a case where an individual claims a discriminatory refusal to hire.
1. The claimant should show that he or she belongs to a racial minority (or other group protected by Title VII); that he or she applied for a job for which he or she was qualified, and for which the employer was seeking applicants; that he or she was rejected; and that after the rejection, the employer continued to seek applicants for the job.
2. Once the claimant proves the foregoing, the "burden" passes to the employer to show that there was some legitimate business reason for rejecting the applicant.
3. If the employer appears to offer such a non-discriminatory reason for its decision, the claimant still has a chance to rebut that reason by showing it to be a mere pretext. A reason for discipline may be shown to be pretextual if:
1. the reason has no basis in fact. U-Haul Co. of Cal
., 347 NLRB No. 34, 180 LRRM 1093 (2006);
2. the reason did not actually motivate the employer's action or the reason was insufficient to motivate the action. Manzer v. Diamond Shamrock Chems. Co.,
29 F.3d 1078 (6th Cir. 1994);
3. there are changes in the employer's reason. Conley Trucking
, 349 NLRB No. 30 (2007);
4. the employer has previously tolerated the kind of conduct in which the employee allegedly engaged, or treats the employee differently than other employees who engage in the same conduct. T. Steel Constr
. Inc., 348 NLRB No. 79 (2006).
There are some situations where you are not required to show economic harm such as loss of a job or a promotion as the result of the employer's action. An unfavorable evaluation placed in your personnel file is illegal if based on race or gender even if it has not yet resulted in economic harm. Sexual harassment is illegal even without an economic result because the discrimination itself is the injury. McDonnell Douglas
and the many cases relying on its methodology are still good law.
Applying McDonnell Douglas to Discrimination Against a Group
There is a similar procedure where a group claims to have been discriminated against.
1. A prima facie case is usually demonstrated by statistics. For instance, it might be shown that the population within commuting distance of the workplace is 35 per cent black but that the work force is only 3 per cent black.
2. Once the prima facie case has been demonstrated, the burden shifts to the employer to demonstrate some business necessity for its decisions. Thus it might try to show that its business requires a level of skill possessed by no blacks, or only a few blacks, in the area near the workplace. (The question could still be raised whether the employer should train minority applicants.)
3. Even if the employer appears to have justified its discriminatory practice by business necessity, the claimants may still rebut by evidence that the business need could have been met in an alternative, less discriminatory way. As an example, an employer might argue that there was a business necessity in its packing department for lifting heavy weights, hence it was justified in firing women unable to lift that much safely. The women might be able to counter by evidence that only some of the packages are too heavy for them, so that if the employer used men for heavier packing, women could perform the remainder.
One of the authors was co-counsel for a class action on behalf of African American "operating engineers." (Operating engineers drive heavy earth-moving equipment.) The suit was directed both against a class of employers and against the union, dispatchers for which were found to recommend African Americans for jobs of shorter duration.
In order to prove a prima facie case, counsel chose as a microcosm the apprenticeship classes administered by the union. It was shown that some effort was made to recruit minorities as apprentices; that during the apprenticeship period the number of hours worked by minorities was not substantially less than the number of hours worked by whites; but that once African Americans or other minorities graduated from the apprenticeship program, their hours worked dropped off dramatically when compared to the work experience of Caucasians.
Finding that defendants could not rebut this prima facie showing of discrimination, the Federal court ordered that union dispatchers send blacks and whites in alternation to jobs they were qualified to perform. Defendants were obliged to provide plaintiffs' counsel with their monthly reports to the pension fund, for the purpose of calculating retirement benefits, as to the number of hours worked by each member of the union. Within a matter of months the percentage of total hours worked that were worked by minorities increased from less than 5 per cent to almost 15 per cent.
But there is a sad sequel to this story, which is characteristic of efforts to change the system through law suits alone. Plaintiffs pleaded with the judge to recognize that they still lacked training on many of the more complex (and better-paying) machines. Experienced operators were in the habit of offering new white workers "seat time" to practice on machinery during lunch breaks and the like, but to deny similar assistance to blacks. Dispatchers could then plausibly argue that a black union member could not be sent out to work on a kind of machine that he or she did not know how to operate. No matter, the judge said: since blacks were now working a percentage of total hours proportionate to their numbers in the union, he would dissolve the consent decree. Within short order African Americans were again working in the neighborhood of less than 5 per cent of total hours.
Litigation must therefore be accompanied by direct action, or the threat of direct action. In the region where one of the authors was employed, Burger King, a non-union employer, hired few blacks and then mostly for jobs "in the back." A letter was sent to the employer concluding that claimants had no choice but to picket Burger King stores on Dr. King's birthday. A hiring agreement and an effective monitoring process materialized within a matter of days.The Right to be Radical
Openly being a radical in the labor movement is easier said than done. The subject is large and complex. Here our concern will be one of the obstacles to an activist who wishes to declare himself or herself a radical: the clauses in many union constitutions that deny union membership, or eligibility for union office, to certain kinds of radicals, vaguely defined.
Such clauses were typically added to union constitutions during the years just before, during, and just after World War II. In 1940 the CIO adopted a resolution stating:
The Congress of Industrial Organizations condemns the dictatorships and totalitarianism of Nazism, communism and fascism as inimical to the welfare of labor, and destructive forms of our government.
In the same vein, Article III, Section 4 of the constitution of a major CIO union, the United Steelworkers of America, stated:
No person shall be eligible for membership, or for nomination or election or appointment to, or to hold any office, or position, or to serve on any Committee in the International Union or a Local Union or to serve as a delegate therefrom who is a member, consistent supporter, or who actively participates in the activities of the Communist Party, Ku Klux Klan, or any fascist, totalitarian, or other subversive organization which opposes the democratic principles to which the United States and Canada and our Union are dedicated.
Laws passed by Congress sought to impose the same kind of restriction on freedom of association and belief. A clause in the Taft-Hartley Act as originally enacted (1947) required union officers to sign affidavits that they were not Communists before their unions could use the machinery of the NLRB. A clause in the LMRDA as originally enacted (1959) declared that no person who was or had been a member of the Communist Party could be a union officer.
The Supreme Court declared such prohibitions unlawful in U.S. v. Brown
, 381 U.S. 137 (1965). Archie Brown was an open member of the Communist Party who had been elected to the executive board of his local union, and had official union backing. The Supreme Court held that mere membership in a political party is not a constitutional reason to exclude a person from union office. It struck down the offensive clause of the LMRDA.
A First Amendment Aberration
Public employees should be aware that the Supreme Court has handed down Garcetti v. Ceballos, 126 S.Ct. 1951 (2006). This decision affirms previous holdings that public employees may be protected by the First Amendment when they speak as citizens about issues of public interest. (Thus a teacher represented by one of the authors engaged in protected speech when he spoke at a town meeting about matters of school policy.) But the Court went on to distinguish speech arising from an employee's workplace duties, declaring: "when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."
Long Distance Running
We offer it as our joint experience that radicals are most likely to survive in the workplace (and in the community) if they have been around for a long time and are regarded as capable and friendly persons.
Here is just one incident along those lines. When Gulf War I began, the Workers Solidarity Club of Youngstown decided to picket against the war at noon every day in the downtown public square. As members of the Club whose office was only a few yards from the designated location for picketing, Staughton and his wife Alice participated almost every day. Staughton did so with a sinking feeling to the effect that, "We've had a good fifteen years here. But now we may have to leave town."
The response was instructive. At the time the Lynds' principal clients were steelworkers and their families who were struggling to retain promised pension and health care benefits after employers shut down or declared bankruptcy. One man said to Staughton, "Lynd, you know I disagree with you about the war." Another man came up to Staughton on a sidewalk as they walked to a meeting in Cleveland and said, "Staughton, you know I agree with you about the war." Then everything went on as before with both these individuals and with the group as a whole. The general sentiment seemed to be, "What else would you expect from Staughton?"
1Charles J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights in the American Workplace (Ithaca: Cornell University Press, 2005), p. 2.
2Id., p. 218.
I think the essay on workers rights is good, as far as it goes, but I would suggest further development and discussion of protected groups. Today, in construction, we sometimes find more protection as members of a protected group"; ie. "over 40", "disabled", "sexual discrimination" than we find in the NLRA. Many white, male construction workers don't yet know that their rights are protected by the EEOC.
There's certainly no right to work, but there is a right to work free from discrimination for certain reasons. With the graying of the workforce, I think we'll find more age discrimination cases each year.