unfair advantage

320 Pages·2012·1.28 MB·English

UNFAIR ADVANTAGE
Workers==== Freedom of Association in the United States under
International Human Rights Standards

Human Rights Watch
New YorkAWashingtonALondonABrussels
Copyright 8 August 2000 by Human Rights Watch
All rights reserved.
Printed in the United States of America.

ISBN: 1-56432-251-3
Library of Congress Catalog Card Number: 00-107304

Cover Design by Rafael JimØnez
Cover photo 81999 Keith Ernst, Southern Exposure Magazine.
Activists rally in May of 1999 at Asheville, N.C. to support freedom of association.

Addresses for Human Rights Watch
350 Fifth Avenue, 34th Floor, New York, NY 10118-3299
Tel: [phone], Fax: [phone], E-mail: [email protected]

1630 Connecticut Avenue, N.W., Suite 500, Washington, DC 20009
Tel: [phone], Fax: [phone], E-mail: [email protected]

33 Islington High Street, N1 9LH London, UK
Tel: [phone], Fax: [phone], E-mail: [email protected]

15 Rue Van Campenhout, 1000 Brussels, Belgium
Tel: [phone], Fax: [phone], E-mail: [email protected]

Web Site Address: http://www.hrw.org

Listserv address: To subscribe to the list, send an e-mail message to
[email protected] with Asubscribe hrw-news@ in the body of the message
(leave the subject line blank).
Human Rights Watch is dedicated to
protecting the human rights of people around the world.

We stand with victims and activists to prevent
discrimination, to uphold political freedom, to protect people from inhumane
conduct in wartime, and to bring offenders to justice.

We investigate and expose
human rights violations and hold abusers accountable.

We challenge governments and those who hold power to end abusive practices
and respect international human rights law.

We enlist the public and the international
community to support the cause of human rights for all.
HUMAN RIGHTS WATCH
Human Rights Watch conducts regular, systematic investigations of human rights
abuses in some seventy countries around the world. Our reputation for timely, reliable
disclosures has made us an essential source of information for those concerned with
human rights. We address the human rights practices of governments of all political
stripes, of all geopolitical alignments, and of all ethnic and religious persuasions.
Human Rights Watch defends freedom of thought and expression, due process and
equal protection of the law, and a vigorous civil society; we document and denounce
murders, disappearances, torture, arbitrary imprisonment, discrimination, and other
abuses of internationally recognized human rights. Our goal is to hold governments
accountable if they transgress the rights of their people.
Human Rights Watch began in 1978 with the founding of its Europe and Central
Asia division (then known as Helsinki Watch). Today, it also includes divisions
covering Africa, the Americas, Asia, and the Middle East. In addition, it includes three
thematic divisions on arms, children=s rights, and women=s rights. It maintains offices
in New York, Washington, Los Angeles, London, Brussels, Moscow, Dushanbe, Rio de
Janeiro, and Hong Kong. Human Rights Watch is an independent, nongovernmental
organization, supported by contributions from private individuals and foundations
worldwide. It accepts no government funds, directly or indirectly.
The staff includes Kenneth Roth, executive director; Michele Alexander,
development director; Reed Brody, advocacy director; Carroll Bogert, communications
director; Barbara Guglielmo, finance director; Jeri Laber special advisor; Lotte Leicht,
Brussels office director; Patrick Minges, publications director; Susan Osnos, associate
director; Maria Pignataro Nielsen, human resources director; Jemera Rone, counsel;
Malcolm Smart, program director; Wilder Tayler, general counsel; and Joanna
Weschler, United Nations representative. Jonathan Fanton is the chair of the board.
Robert L. Bernstein is the founding chair.
The regional directors of Human Rights Watch are Peter Takirambudde, Africa;
JosØ Miguel Vivanco, Americas; Sidney Jones, Asia; Holly Cartner, Europe and Central
Asia; and Hanny Megally, Middle East and North Africa. The thematic division
directors are Joost R. Hiltermann, arms; Lois Whitman, children=s; and Regan Ralph,
women=s.
The members of the board of directors are Jonathan Fanton, chair; Lisa Anderson,
Robert L. Bernstein, David M. Brown, William Carmichael, Dorothy Cullman, Gina
Despres, Irene Diamond, Adrian W. DeWind, Fiona Druckenmiller, Edith Everett,
Michael E. Gellert, Vartan Gregorian, Alice H. Henkin, James F. Hoge, Stephen L.
Kass, Marina Pinto Kaufman, Bruce Klatsky, Joanne Leedom-Ackerman, Josh
Mailman, Yolanda T. Moses, Samuel K. Murumba, Andrew Nathan, Jane Olson, Peter
Osnos, Kathleen Peratis, Bruce Rabb, Sigrid Rausing, Orville Schell, Sid Sheinberg,
Gary G. Sick, Malcolm Smith, Domna Stanton, John J. Studzinski, and Maya Wiley.
Robert L. Bernstein is the founding chair of Human Rights Watch.
ACKNOWLEDGMENTS

Lance Compa is the author of this report. Cynthia Brown is the principal
editor. Research and writing assistance was provided by Human Rights Watch
consultant Jennifer Bailey and fellow Carol Pier. Research assistance was provided
by Human Rights Watch associate Sam David and intern Manuel Rybach. Senior
Researcher Allyson Collins provided program coordination; advice on international
law was provided by Wilder Tayler, Legal and Policy Director of Human Rights
Watch; and Program Director Malcolm Smart provided additional editorial input.
Technical consultations on labor law and labor markets were provided by
labor law Prof. Charles J. Morris of Southern Methodist University (retired) and
lawyer/economist Howard Wial of the Keystone Research Center, to both of whom
Photographic research assistance was provided by Keith Ernst of Southern
Exposure Magazine. Human Rights Watch extends its thanks, as well as to John J.
Walsh of Carter, Ledyard and Milburn of New York, who provided pro bono legal
advice on the text.
TABLE OF CONTENTS

NOTE ON METHODOLOGY.............................................................................1

I. SUMMARY.....................................................................................................7
Policy and Reality......................................................................................10
Workers= Voices.........................................................................................11
International Human Rights and Workers..................................................14
International Labor Rights Norms..............................................................16

II. FINDINGS AND RECOMMENDATIONS.................................................18
General.......................................................................................................18
Immigrant Workers....................................................................................34
Agricultural Workers.................................................................................38
H-2A Workers......................................................................................40

III. WORKERS= FREEDOM OF ASSOCIATION UNDER INTERNATIONAL
HUMAN RIGHTS LAW...........................................................................42
The International Background....................................................................42
International Human Rights Instruments....................................................43
Regional Instruments.................................................................................45
ILO Conventions and OECD Guidelines...................................................46
U.S. Commitments in the Multilateral Setting...........................................48
U.S. Trade Laws........................................................................................50
The North American Free Trade Agreement..............................................52

IV. FREEDOM OF ASSOCIATION UNDER U.S. LABOR LAW.................54
The U.S. Legal Framework for Workers= Freedom of Association ...........54
How Workers Form and Join Trade Unions in the United States..............58
How the National Labor Relations Board Works......................................64

V. CASE STUDIES OF VIOLATIONS OF WORKERS= FREEDOM OF
ASSOCIATION.........................................................................................74
Context: The Increase in Workers= Rights Violations under U.S. Law......74
Service Sector Workers..............................................................................79
South Florida Nursing Homes..............................................................79
San Francisco, California Hotels..........................................................92
Food Processing Workers..........................................................................97
North Carolina Pork Processing...........................................................97
Detroit, Michigan Snack Foods..........................................................108
Manufacturing Workers...........................................................................117
Baltimore, Maryland Packaging Industry...........................................117
Northbrook, Illinois Telecommunications Castings...........................122
New Orleans, Louisiana Shipbuilding................................................127
New York City Apparel Shops...........................................................134
Migrant Agricultural Workers..................................................................139
Washington State Apple Industry.......................................................139
North Carolina Farmworkers and the H-2A Program.........................151
Contingent Workers.................................................................................164
High-Tech Computer Programmers...................................................167
Express Package Delivery Workers...................................................172

VI. LEGAL OBSTACLES TO U.S. WORKERS= EXERCISE OF FREEDOM
OF ASSOCIATION.................................................................................175
Defenseless Workers: Exclusions in U.S. Labor Law..............................175
Agricultural Workers..........................................................................177
Domestic Workers..............................................................................179
Independent Contractors....................................................................185
Supervisors.........................................................................................189
Managers............................................................................................190
Other Exclusions................................................................................191
Public Employees...............................................................................191
Colorado Steelworkers, the Right to Strike and Permanent Replacements in
U.S. Labor Law..................................................................................194
Worker Solidarity and Secondary Boycotts.............................................213

NOTE ON METHODOLOGY

Human Rights Watch selected case studies for this report on workers= freedom
of association in the United States with several objectives in mind. One was to
include a range of sectorsCservices, industry, transport, agriculture, high techCto
assess the scope of the problem across the economy, rather than to focus on a single
sector. Another objective was geographic diversity, to analyze the issues in
different parts of the country. The cases studied here arose in cities, suburbs and
rural areas around the United States.
Another important goal was to look at the range of workers seeking to exercise
their right to freedom of associationChigh skill and low skill, blue collar and white
collar, resident and migrant, women and men, of different racial, ethnic and national
origins. Many of the cases involved the most vulnerable parts of the labor force.
These include migrant farmworkers, sweatshop workers, household domestic
workers, undocumented immigrants, and welfare-to-work employees. But the
report also examines the rights of U.S. workers with many years of employment at
stable, profitable employers. These include packaging factory workers, steel
workers, shipyard workers, food processing workers, nursing home workers, and
computer programmers.
The cases studied here offer a cross-section of workers= attempts to form and
join trade unions, to bargain collectively, and to strike. The cases reflect violations
and obstacles workers met in the exercise of these rights. In many cases, workers=
voices recount their experiences. Human Rights Watch also made written requests
for responses and comments from employers identified in the report. Most of them
declined. Of those who did respond, most did not want to be identified by name. In
several cases, the names of individual managers are known to Human Rights Watch,
but they are omitted so as not to profile them unduly in a human rights report with
wide distribution to the public. This report is intended to illuminate systemic
problems in U.S. labor law and practice, not conduct of individuals.
In addition to interviews, the report relies on documented evidence in
proceedings under U.S. labor law. Researching and writing a report like this is
different from other international human rights investigations and reports carried out
in zones of armed conflict, in refugee camps, or in countries without functioning
legal systems. The United States has an elaborate system of constitutional, statutory
and administrative labor law. In many of the cases studied here there are legal
records and decisions by neutral adjudicators.
In many cases, the report relies both on interviews with workers and on
records available from the National Labor Relations Board (NLRB) or federal court
decisions. Workers in the private sector who are covered by the National Labor

1
2 Unfair Advantage

Relations Act (NLRA) can file charges with the NLRB for violations of their
statutory rights to organize, to bargain collectively, and to strike. Decisions of the
NLRB are subject to review by the federal courts This gives rise to investigations
and resulting legal procedures that produce an often extensive written record.
Where such a record is available, Human Rights Watch relies on it to shed light on
the nature and extent of workers= rights violations.
To supplement its on-the-ground research and official records, Human Rights
Watch used credible news accounts of instances where workers= rights appear to
have been impaired. Books published by university presses and based on extensive
field research are also used, as are law review and social science journal articles.
No Human Rights Watch assertion in this report is based on unfair labor
practice charges against employers. Workers can file such charges with the NLRB
claiming a violation of their rights, but the charge by itself is an allegation. Human
Rights Watch begins relying on NLRB records with the issuance of complaints by
the general counsel of the agency. Complaints are issued when an investigation
finds merit in the charge.
The NLRB is scrupulous in evaluating charges and issuing complaints. Fewer
than 15 percent of unfair labor practice charges result in complaints. However, the
NLRB makes intensive efforts to settle meritorious cases before issuing complaints,
as well as after issuing complaints but before a hearing. Human Rights Watch
refers to such settlements in this report. Their use is not intended to characterize
conduct cited in the settlements as unlawful under the NLRA, but to provide an
account of the conduct in light of international standards.
Findings of merit in unfair labor practice charges are based on detailed
investigations of charges by regional agents of the NLRB and evaluations by
experienced labor law attorneys in the regional offices. These investigations
include interviewing and taking affidavits from workers who filed charges and from
potential witnesses. They also involve consulting extensively with employers and
offering them an opportunity to rebut any charges through written position
statements and dialogue with the NLRB regional officials. Based on these
investigations and evaluations of the evidence, labor law enforcement officials
decide whether charges have merit. Only upon finding that charges are meritorious
does the NLRB seek pre-complaint settlements or, failing settlement, issue