Existing U.S. labor laws block fundamental rights on the job ... freedom to speak, assemble, organize
Exercising our Constitutional rights in the job
August 2001

Several months ago, Rutgers law professor Jim Pope, labor activist Peter Kellman, and Labor Party organizer Ed Bruno drafted a new Labor Party paper entitled "Toward a New Labor Law." (available at www.igc.org/lpa)

The authors probably didn't expect their 16-page white paper, complete with footnotes, to become a labor movement best-seller. But the paper has found its way into the hands of hundreds of trade unionists around the country, many of whom seem intrigued by its premise: that there's a whole other way to look at the question of "labor rights." The paper dovetails with a growing interest in the idea that workers' rights are human rights.

In the January 2001 issue of the Labor Party Press, Harvard Trade Union Program director Elaine Bernard addressed the concepts underlying the paper.

Elaine Bernard:

Over 40 percent of U.S. workers say they would join a union on the spot, if they only had the choice. The problem is, workers don't have a choice under current labor law. And that helps explain why, despite workers' interest, less than 14 percent of them are in unions.

Labor law today is largely a series of barriers over which workers must climb to gain elementary rights. And each year these barriers get higher and higher. The law has become a tangled web of complex regulations constantly violated with impunity by employers.

For almost 65 years, the U.S. labor movement has fought a losing battle to amend the 1935 National Labor Relations Act, the cornerstone of U.S. labor law, to make it more favorable to workers. But should we really be fighting to restore "fairness" in the NLRA? After all, a victory in this campaign would simply bring us back to 1935.

The Labor Party, together with friends in academia, is considering another kind of approach: perhaps we need to question the basic assumptions behind U.S. labor law.

Few people today remember that when the National Labor Relations Act was adopted by Congress in 1935, its purpose was not simply to provide a procedural mechanism to end industrial strife in the workplace. Rather, this monumental piece of New Deal legislation had a far more ambitious mission: to promote industrial democracy. To achieve this extension of democracy into the workplace, the NLRA instituted "free collective bargaining" between workers and employers. Unions were to be encouraged, not simply tolerated. And it was understood that workers could not engage in meaningful collective bargaining without collective representation.

Unfortunately, the NLRA no longer achieves those original aims. It's been a long time since we've heard any president or administration talk about promoting industrial democracy or the rights of American workers. In fact, these days, the very term "industrial democracy" seems like a contradiction in terms.

At least part of the problem with the NLRA is the congressional power upon which it rests. The Act's authority derives from Congress's power to regulate interstate commerce -- the "commerce clause" of the U.S. Constitution. Given these underpinnings, it's not surprising that the courts and the employers have used labor law as a weapon against workers whenever union power is seen as challenging commerce.

Instead of using this management-oriented clause as the basis of labor law, why not go back to the drawing board? In the U.S. Constitution, there are two powerful articles that workers could take up and use to breathe new life into the struggle for worker rights: the First and Thirteenth Amendments to the Constitution.

Labor law should be based on the idea that the fundamental rights guaranteed in these amendments -- free speech, assembly, and freedom from "involuntary servitude" -- are not shed at the office door or the factory gate. Like the civil rights movement of the 1960s, we can build a workers' rights movement by exercising rights guaranteed in the Constitution but denied in practice or explicitly by unjust laws.

Internationally, the "rights" approach would unite us with the growing consensus that labor rights are human rights. In 1998, the International Labor Organization (with active participation of U.S. labor, business, and government) adopted a Declaration of Fundamental Principles and Rights at Work, which spells out four universal rights:

a. freedom of association and the effective recognition of the right to collective bargaining;

b. the elimination of all forms of forced or compulsory labor;

c. the effective abolition of child labor; and

d. the elimination of discrimination in respect of employment and occupation.

But we need not look to the International Labor Organization, the United Nations, or any other international institution to find legal backing for the rights of workers. Our power comes straight from the U.S. Constitution.

Here are some suggestions about how these rights might be exercised:


The First Amendment guarantees the right of free speech and the right to assemble -- and by extension, the right to bargain collectively. A rights approach, using the First Amendment, would demand that workers must enjoy freedom of speech on as well as off the employer's property and have a right to call on other workers for support.

In the past, the courts have given precedence to employer property rights over workers' speech rights, limiting the speech of employees and permitting employers to discipline or fire workers for "disloyal" speech. Labor law also bans "solidarity" strikes or actions by workers at "neutral" employers.

But under a rights approach, workers need not pledge allegiance to the firm and they must be given the same free speech rights enjoyed by other citizens -- especially when it comes to their right to organize. That means workers would have the right to invite union organizers onto the employer's property and to call on other workers to come to their aid through boycotts and other sympathy actions, including solidarity strikes.

When an employer censors a worker's speech, it is treating the worker more like a slave than a citizen.


Under the NLRA, the government, through the National Labor Relations Board, decides what groups of workers may assemble together for collective action and bargaining. Instead of protecting the right of workers to join together and deal with the employer, the Act establishes a system of government-approved "bargaining units." The Board and the courts decide which workers will be in which units.

When workers cannot determine who they will associate with for mutual aid, they are denied a basic right of citizenship.

Under a rights approach, any number of workers can form an association, including a union, and present and resolve grievances and make agreements with the employer.

Freedom of association is not limited to groups that have majority support. When an individual worker is forced to face the collective power of a corporate employer without the support of her union, she is placed in the position of a helpless slave dealing with a powerful master.


The Thirteenth Amendment abolished slavery and involuntary servitude: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction."

A rights approach, using the Thirteenth Amendment, would demand that the right to strike must include the right not to lose one's job permanently to a strikebreaker.

The freedom of labor must include the right to withhold personal labor in solidarity with workers in other parts of the country or even internationally. With corporations organized on a multinational basis, effective labor freedom necessarily requires the right to engage in solidarity actions, and to combine across borders.

Many solidarity efforts, both domestically and internationally, run up against a prohibition on "secondary boycott" that effectively prohibits solidarity actions. When corporations are permitted to organize multinationally and give assistance to a struck firm, while workers are limited to local protests and only permitted to engage in action against the immediate employer because of artificial corporate boundaries, then corporations become arrogant masters while workers are reduced to dependent slavery.

Under current law, workers' freedom of labor is subordinated to employer property rights. Workers may not be fired for striking, but they may be "permanently replaced" by strikebreakers. The employer's property right "to protect and continue his business" trumps the workers' right to strike. In practice, then, an employer can permanently replace strikers as a way of punishing them for exercising their "right" to strike.

When an employer has the power to punish workers for exercising their fundamental rights, the employer is acting as a master and the employee is a slave whose rights mean nothing.

Ultimately, a rights approach may help remind us where labor's power comes from. Rights are only words. They have little power on their own. They are not self-exercising. To exercise them, we need to construct a vehicle--a union--through which workers can use the rights, claim further rights, and expand and protect their dignity and achievements. More important, we don't have to wait for a new Congress, a new President, or massive political change to start exercising our constitutional rights--we can start doing it right now.

From the Labor Party Press, January 2001. To join the Labor Party, send $20 to The Labor Party, P.O. Box 53177, Washington, D.C., 20009. A subscription to the paper comes with your membership. For more information, call the Alachua County Labor Party, 375-2832. The complete text of the Labor Party paper, "Toward a New Labor Law," is available at www.igc.org/lpa.

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