In this report:
Restoring the Right to Form Unions:
An Important First Step in Reversing the Erosion of Workers' Rights Overall
Over much of the past quarter century, federally guaranteed workplace and civil rights have been chipped away through a combination of anti-worker executive and administrative actions and adverse judicial decisions. Actions by former President Bush's administration and its federal agencies have greatly accelerated this erosion of workplace rights. While the new administration of President Barack Obama promises vigorous enforcement of workers' rights, it will have an enormous challenge on its hand, as it seeks to address numerous anti-worker policies put in place by the previous administration, and restore public confidence in the federal government's commitment to protecting America's workers.
Within weeks of his first inauguration, former President Bush issued an executive order requiring federal contractors to affirmatively inform workers of their right not to join unions, but imposing no corresponding obligation to tell workers of their explicit right to organize and bargain. Another order issued at the same time struck down modest Service Contract Act rules designed to provide limited job security to service contract workers, many of whom are low-paid women and minorities, when contracts change hands. More recently, on the heels of Hurricane Katrina, President Bush suspended Davis-Bacon Act standards governing wages and quality of work for federally-funded reconstruction projects in the affected areas. Though subsequently rescinded, the order was widely seen as a thinly veiled attempt to bootstrap this horrific tragedy into a rationale for achieving on a small scale what employers and anti-worker legislators had, for nine years, tried but failed to win more broadly: repeal of the Davis-Bacon Act.
Bush appointees at federal agencies likewise acted to limit or eliminate opportunities, rights, and protections for workers at the same time they loosened requirements imposed on employers. The examples are legion:
- Echoing the White House, the Labor Department exempted federal contracts for Katrina relief efforts from affirmative action requirements and shrunk the pool of contracts targeted to economically disadvantaged minority-owned businesses. Only a year earlier and over the strenuous objections of bipartisan majorities in both houses of Congress, the Labor Department implemented new overtime rules estimated to deprive eight million workers of overtime protections.
- The Federal Acquisition Regulation Council repealed a procurement rule designed to limit the likelihood that corporations guilty of illegal conduct, including violations of labor and environmental laws, would receive taxpayer-funded federal contracts.
- Alternately construing employment tests under the National Labor Relations Act (NLRA) narrowly or broadly, the National Labor Relations Board (NLRB) wiped out NLRA protections for whole categories of workers, including graduate teaching assistants and certain kinds of senior level employees, such as charge nurses.
- The Transportation Department explicitly denied collective bargaining rights to the nation's 40,000-plus transportation security administration airport screeners—a denial both houses of Congress voted to reverse, against the threat of a presidential veto from Bush. Similarly, former Attorney General Mukasey and heads of other agencies stripped bargaining rights from federal employees who had long enjoyed them, under the superficial guise of "homeland security."
- The Occupational Safety and Health Administration, in steps aligned with industry interests, scuttled or delayed agency actions designed to protect workers from harmful materials in the workplace, such as beryllium alloys and crystalline silica.
Furthermore, decisions by the Supreme Court and lower courts have eroded workers' rights and protections, making it easier—and even more tempting—for employers to violate both the letter and spirit of worker rights and civil rights laws. The Supreme Court's 2002 decision in Hoffman Plastic Compounds v. National Labor Relations Board (535 U.S. 137 [2002]), which barred back pay awards to undocumented immigrants fired for attempting to form unions, erased for an entire group of workers the primary (albeit limited) monetary deterrent our labor law provides against unlawful employer conduct. In the 2007 decision Ledbetter v. Goodyear Tire & Rubber Co. (550 U.S. 618 [2007]), the Supreme Court, upending years of precedent, reinterpreted anti-discrimination laws to make it prohibitively difficult for victims of pay discrimination to pursue their claims. (Civil rights groups recently reversed this decision when they succeeded in getting Congress to pass the Lilly Ledbetter Fair Pay Act in January 2009. This was the first bill signed by President Obama.) Meanwhile, a decade's worth of Supreme Court decisions interpreting the Eleventh Amendment has greatly curtailed the right of individuals who work for states and their agencies to recover monetary damages for violations of the Fair Labor Standards Act (Alden v. Maine (527 U.S. 706 [1999]); the Age Discrimination in Employment Act (Kimel v. Florida State Board of Regents (528 U.S. 62 [2000]); and the Americans with Disabilities Act (University of Alabama v. Garrett (531 U.S. 356 [2001]).
The cumulative impact of these actions by public officials who make, enforce, and interpret federal rules governing workers and the workplace has been to diminish rights and protections for workers overall. But when it comes to the particular right of workers to organize and bargain collectively, the damage arising from these acts by public officials is magnified many times over by the aggressive and virulent offensives employers and their union-busting consultants typically launch when workers try to form unions.
The observations in a 2000 Human Rights Watch study about what happens to American workers who try to form unions are eerily, and sadly, reminiscent of what minorities routinely endured when trying to assert their basic rights before passage of civil rights laws. According to Human Rights Watch, "[M]any [U.S.] workers who try to form and join trade unions to bargain with their employers are spied on, harassed, pressured, threatened, suspended, fired, deported or otherwise victimized in reprisal for their exercise of the right to freedom of association." Although "[p]rivate employers are the main agents of abuse," they are aided by inadequate law enforcement and "enervating delays and weak remedies" that "invite continued violations." As a result, Human rights Watch concluded, "Freedom of association is a right under severe, often buckling pressure when workers in the United States try to exercise it." In a 2009 report, Human Rights Watch determined that passage of the Employee Free Choice Act would be a significant step toward reclaiming American workers' freedom of association.
Next Section: The Empire Strikes Back
