Twenty years ago the National Conference of Catholic Bishops published a pastoral letter on Catholic social teaching entitled Economic Justice for All. Today, only a few people are aware of that document's existence, and its impact has been negligible. It has been seven years since the publication of Human Rights Watch's Unfair Advantage concerning the state of workers' freedom of association in the United States. Given the continued widespread violations of that fundamental human right in this country, I often fear that Unfair Advantage will go the way of Economic Justice for All—until hope is kept alive by hearing of the work of people such as those on this panel.

     Freedom of association is a fundamental human right because a fully human life requires participation in the political, economic, and social life of the human community so that people have an influence on the decisions that affect their lives. Servility is incompatible with human rights. Servility, or what some call powerlessness, leaves human beings dependent on the benevolence, pity, charity, or arbitrary power of others. Consequently, labor organizations are not merely the consequences of bad management. No matter how kind or generous or "enlightened" an employer might be, no employee (or community) should be dependent on someone's benevolence for their welfare. That is servility. It also follows from this concept of human rights at the workplace that each worker has a moral obligation to promote and protect not only his or her own workplace rights and interests but also those of fellow workers. In part, that is because the realization of human rights at the workplace cannot be ensured by isolated workers.

     Because freedom of association is a human right, the state is obliged to promote it and protect its exercise. The language of the National Labor Management Relations Act (Taft-Hartley Act), carried over from the 1935 National Labor Relations Act (Wagner Act), states that it is the policy of the United States to encourage collective bargaining by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing. Yet we have a NLRB that strains to find some basis or rationale to discourage or make it more difficult to organize and engage in collective bargaining. That is inconsistent with the statute, to say nothing of human rights.

        Even more hypocritical is the fact that the same statute that encourages the freedom of association for collective bargaining enables—actually encourages—employers to resist the exercise of that right by their employees. This state-sanctioned resistance to the exercise of freedom of association goes beyond the statute, which includes Section 8(c)—the so-called employer free speech provision. The Supreme Court, for example, has denied non-employee union organizers access to employer property except in the most extreme and unusual situations. The NLRB's captive audience doctrine, as another example, makes the workplace the only place in the United States where people can be compelled to listen to a speech and be disciplined or penalized if they refuse.

     The Wagner Act NLRB took an employers hands off their employees' exercise of freedom of association approach on the grounds that anything an employer might say or do in that regard was inherently coercive because employers controlled the employees' jobs. Captive audience speeches were per se unfair labor practices for the same reason. The Wagner Act Board also approved non-employee union organizers access to employers' property in nonwork areas and during nonwork time because the workplace was the most effective place to organize and that was most consistent with the purpose of the act.

     Human Rights Watch, in Unfair Advantage, opts for a more speech rather than less speech policy, which would increase union access to workplaces and give unions equal time to address employees without limiting lawful employer speech. I am less enthusiastic about this recommendation when applied to employer representation campaign speech in general and captive audience speech in particular. Even First Amendment protected speech is not absolute. The inherent coercive power that employers possess is sufficient grounds for requiring that they remain neutral in their employees' exercise of their right of freedom of association. As Judge Learned Hand said many years ago: "What to an outsider will be no more than a vigorous presentation of a conviction, to an employee may be the manifestation of a determination which is not safe to thwart" (NLRB v. Federbush 121 F. 2d. 954, 957 [1941]).

        One way to reduce the effect of employer speech without legislative amendment would be to reduce the need for or at least the duration of representation election campaigns. Certification of representatives as the result of authorization card checks rather than representation elections has been discussed for many years. Human Rights Watch, however, maintains that secret ballot elections should remain the standard method for determining worker choice. At the same time, it takes the position that "public policy should encourage the use of voluntary card-check agreements as an alternative means of establishing workers' majority sentiment and collective bargaining rights" (2000: 23).

     As Unfair Advantage puts it, employers "should begin to view workers' self-organization as a fundamental human right, and treat it as such" (Compa and Human Rights Watch 2000: 18). Until I see evidence that employers in this country have come to recognize and respect their employees' freedom of association as a human right, however, I see no reason why card-check certifications should be limited to those situations where employers agree to accept that arrangement or why "more speech" is a solution to the problem of coercion at the workplace. Taking seriously workers' rights as human rights has enormous implications for workers as well as U.S. labor law and policy. This brief discussion barely touches on only a couple of those implications.

     Back in the 1960s Sam Zagoria, then an NLRB member, proposed that a clear statement of workers' rights under the Taft-Hartley Act be posted at every workplace within the board's jurisdiction. Cries of pro-labor bias among other things derailed that idea. Each of the panelists in their own way are to be commended for spreading the word about workers' rights as human rights. Unfair Advantage contains the following important statement: "the primary actors in the labor field—workers themselves who seek to exercise rights enshrined in international law, and trade union leaders and organizers who assist them—should view and carry out their mission as one that includes human rights concerns" (Compa and Human Rights Watch 2000: 18).

     The concept of human rights has not been an important influence in the making of U.S. labor law or policy. The idea of workers' rights as human rights is an even less familiar concept. Workers (and the general public) need to know that when they are fired for exercising their freedom of association, when their safety and health are compromised, when they are discriminated against by being treated as something less than fully human or as somebody that does not matter that is more than unfair and more than a violation of some statute—it is a violation of their human rights.

        They also need to know that something can be done about it if they exercise their freedom of association even in the face of employer hostility. (Maybe some day collective bargaining agreements will contain human rights clauses as well as the ubiquitous management rights clauses.) That will not occur without the work and support of people such as our panelists. In addition, Unfair Advantage has the potential to inspire people whose rights are at stake to reject destinies defined by someone else and to force governments and private enterprises to respect their human rights. That is what freedom of association means.

Reference

 Compa, L. A., and Human Rights Watch. 2000. Unfair Advantage: Workers' Freedom of Association in the United States under International Human Rights Standards. New York: Human Rights Watch.