Here is a Labor Day idea. Why not make the right to join a union a basic civil right? In theory the Wagner Act gives workers the right to freely vote in a union, but in practice the price to employers for violating the law is small. Employers who retaliate by firing workers are subject to orders to reinstate them and provide back pay. But this enforcement process takes time. According to National Labor Relations Board data for fiscal year 1998, the average back-pay award against employers for unfair labor practices was $32,509, and the median time between the filing of charges and issuance of a board decision was 658 days. A small number of firings is often enough to intimidate other workers and break a unionization drive.
Employers know that wages of unionized workers are on average one-third higher than those of nonunionized workers, so they have a strong financial incentive to try to stop an organizing campaign by picking off a few ringleaders and paying the minor back-pay penalties. Indeed, as labor lawyer Thomas Geoghegan has written, "An employer who didn't break the law would have to be what economists call an 'irrational firm.'" A study conducted by Harvard Law professor Paul Weiler found that one in 20 union supporters were fired during election campaigns, while the AFL-CIO puts the figure at closer to one in eight. The fact that public-sector unionization has grown in recent years, while private-sector union representation has plummeted, can surely be explained in part by the fact that public employers don't fire union organizers but private employers commonly do.
Civil rights laws provide far more potent penalties for employment discrimination than labor laws do. Under 1991 amendments to the Civil Rights Act, women and people of color can sue not only for back pay but also for compensatory and punitive damages up to $300,000. Plaintiffs are now provided access to jury trials; when plaintiffs prevail, defendants are liable for up to double the hourly rate for plaintiffs' legal fees. Following adoption of the 1991 amendments, the number of employment discrimination cases filed in federal court more than doubled. In 1997, according to Jury Verdict Research, the median jury award in employment bias and sexual harassment cases was $250,000.
Administration of civil rights laws through the Equal Employment Opportunity Commission (EEOC) has historically been somewhat cumbersome, but an increased use of mediation and expanded staffing has permitted the organization to cut its backlog of cases by more than one-half. Moreover, Title VII remedies for unlawful discharge of unionizing workers are likely to be an even more effective deterrent than they have been against racial and gender discrimination because labor unions can use some of their $5 billion in annual income to support plaintiffs, while most women and people of color must rely on contingency lawyers.
Why not just amend the labor laws to increase penalties? Here's where the political advantage of the civil rights approach enters in. So long as the right to organize is treated as an issue of raw interests rather than one of fundamental human rights or moral values--as part of labor law rather than civil rights law--reform is unlikely to occur. For the past quarter-century, labor has found itself in a political box: In order for labor law to be reformed, labor must grow more powerful; but in order for labor to become more powerful, the labor laws need to be reformed.
Defining labor organizing as a civil right breaks the deadlock by taking the focus off "unions," which some Americans disfavor, and putting it onto the egregious behavior of employers who fire people for reasons having nothing to do with job performance. The antidiscrimination principle in employment is immensely popular. According to Gallup polls from the late 1990s, even though 59 percent of Americans believe "homosexual behavior is wrong," a phenomenal 84 percent say gays should "have equal rights in terms of job opportunities."
It is time for labor to recapture the rhetoric of "rights," which business successfully appropriated many years ago in its anti-union "right to work" slogan. Whereas "labor law reform" doesn't excite the liberal ear, "civil rights" does.
Critics might question whether it is appropriate to treat labor organizing as a civil right; civil rights laws are often thought of as protecting individuals from discrimination based on immutable factors like race, national origin, and gender. But our civil rights statutes also protect religious minorities, even though an individual's religious beliefs are mutable, because it is important to protect employees against discrimination based on the exercise of basic rights unrelated to job performance. Labor organizing is tied to the fundamental constitutional right of association, and the "right to self-organization" has been enshrined in the Wagner Act since 1935, even if the remedies have been inadequate.
While some civil rights groups may fear that opening up Title VII for amendment will invite mischief from conservatives, that concern appears overblown. Attempts by the Republican Congress to cut back on affirmative action preferences have failed on four separate occasions in recent years. Moreover, people of color would disproportionately benefit from better protection of unions. According to the Bureau of Labor Statistics, more than half of unionized workers in 1999 were female, black, or Latino. More to the point, 59 percent of blacks, compared with 28 percent of nonblacks, would vote for a union if given a chance, according to researchers Richard Freeman and Joel Rogers. To ensure adequate enforcement of civil rights, including the right to organize, funding for the EEOC should be substantially increased.
Of course, some business groups will fight efforts to amend the civil rights laws to protect union organizing just as fiercely as they have resisted labor law reform. But clearly stated ideas with strong political resonance can sometimes overcome such opposition, as opponents of the minimum wage found in 1996, when a Congress led by Newt Gingrich and Trent Lott overwhelmingly voted to enact a 20 percent minimum wage hike. Who knows? Maybe if progressives tried this new tack, they'd have something more to do on Labor Day a year from now than to bemoan the continued decline of society's most important bulwark against inequality. ¤