Bill would make freedom to join unions a Civil Right

Bill Knight column for Thurs., Fri., or Sat., August 28, 29 or 30

As Labor Day approaches, it’s worth noting progressive Democrats’ effort to hold accountable employers that break the law by introducing legislation on Capitol Hill that makes free association with unions a Civil Right.

Congressmen Keith Ellison (D-Minn.) and Civil Rights pioneer John Lewis (D-Ga.) on July 30 introduced the Employee Empowerment Act, a measure that would protect labor organizing from retaliation like protections against other forms of discrimination. The legislation would make joining a union a legally protected Civil Right by bringing union membership under Title VII of the Civil Rights Act – the same legislation that bars employment bias based on race, gender, religion, national origin, etc.

“Union organizing has been maligned in our society,” Joseph Geevarghese, deputy director of the Change to Win coalition, told The Nation magazine. “There is a value in re-defining what all of these tens of thousands of brave workers are doing as, ‘We have a fundamental right to stand up and speak out about injustice in this country’.”

The bill would amend federal law to include labor organizing as a fundamental right.

Existing labor law prohibits employers from disciplining or firing workers because of union activity, but there are few consequences to discourage law-breaking. Workers facing illegal acts from employers today are limited to filing charges with the National Labor Relations Board (NLRB), a process that frequently is slow and historically lenient on violators. If the proposal would pass, workers after 180 days could take their allegations from the NLRB to a federal court, which is how the law works now for Civil Rights disputes, giving workers the option to go beyond the Equal Employment Opportunity Commission (EEOC). Workers then could choose to pursue their cases instead of relying exclusively on a decision by the NLRB to issue a complaint against law-breakers. The process could move faster than the NLRB, which can take years to decide, and help workers recover money.

In NLRB cases that levy small fines, Ellison said, “Some of these union-busting law firms will say, ‘So do it and we’ll just pay’.”

Bringing union membership under Title VII would allow for discovery, jury trials and recovery of lawyers’ fees and punitive damages.

The labor movement needs to get back on the offensive, Ellison added.

“With the Supreme Court in here, and what they just did in ‘Harris v. Quinn’ … it’s insane to hope for the best,” he said. “This Supreme Court is openly hostile to racial justice and worker justice simultaneously. So we better be moving out on both fronts.”

Ellison said he got the idea from a book by Moshe Marvit and Richard Kahlenberg, “Why Union Organizing Should Be a Civil Right,” which says that the First Amendment’s right to free association should include a crucial form of association – joining together to resist unfair treatment from employers.

Ellison and Lewis have 15 co-sponsors, including U.S. Reps. Danny Davis (D-Ill.), John Conyers (D-Mich.) and Eleanor Holmes Norton (D-D.C.).

The proposal, which was referred to the Committee on Education and the Workforce, passes Constitutional muster, Ellison said. And it’s something that’s sensible to everyday Americans.

“Civil Rights is something that Americans really understand, and has a legitimacy that is sort of beyond reproach,” Marvit told The Nation. “So when you put it in Civil Rights terms, it’s something that really speaks to people.”

Ellison added, “If it’s a Civil Rights action, it’s vindicating your personal right, first of all, to freedom of assembly and freedom of expression. You shouldn’t be fired for expressing an intent to support union activity.”

Indeed, U.S. courts and legislatures have claimed they’ve tried to “strike a balance” between competing sets of rights. The notion of a “level playing field” is appealing, but trying to balance competing rights ignores the inherent power imbalance between labor and management. Therefore, what seems to be balanced actually favors the powerful: management.

As federal Appeals Court Justice Learned Hand, who served from 1924–1961, once explained the concept of employer free speech, “What to an outsider will be no more than the vigorous presentation of a conviction, to an employee may be the manifestation of a determination which it is not safe to thwart.”

[PICTURED: Graphic of U.S. Rep. John Lewis from unionswork.us.]