On Black Friday in 2012, Wal-Mart employees staged a one-day walkout protesting low pay, lack of benefits, and heavy-handed tactics by management intended to prevent them from organizing.
Shortly thereafter, eleven of these strikers were fired in apparent retaliation for the protests. Rep. Keith Ellison (D-MN) described the firings as “completely unjust and illegal.”
In April of 2013, Taco Bell worker Martina May participated in a fast-food workers strike in New York City to achieve the following goals: “I want respect, a better salary, to be able to join a union without my employer intimidating me.”
And, on June 24, in New York City, two employees at the independent bookstore Book Culture were fired for voting in favor of union representation.
The frequency with which these firings occured is noteworthy, because firing or otherwise disciplining an employee for supporting an organizing effort has been illegal since 1935.
A Law without Teeth
The National Labor Relations Act (NLRA) recognizes the “right to self-organization, to form, join or assist labor organizations.” Specifically, section 8(a)(3) of the NLRA makes it unlawful to discriminate against employees “in regard to hire or tenure of employment or any term or condition of employment.”
Yet despite being codified into law, “the penalties that employers incur for violating workers’ legal right to organize are negligible.” As a result, corporations routinely violate the law by firing employees that support an organizing drive.
In order to persuade corporations to respect the legal rights of their employees, TCF’s Richard Kahlenberg and Moshe Marvit suggest extending Title VII of the Civil Rights Act of 1964, which would provide protections to labor organizers.
Such a change would put teeth into the existing NLRA prohibition by applying the full force of [the Civil Rights Act].
Just as Title VII prohibits workplace discrimination on the basis of sex, religion, race, and ethnicity, and just as the proposed Employment Non-Discrimination Act would extend protections to include sexual orientation and gender identity, these same anti-discrimination protections should also cover employees that seek to join or form a union.
Such a change would put teeth into the existing NLRA prohibition by applying the full force of Civil Rights penalties and procedures to businesses that break the law.
By inserting the phrase “on the basis of seeking union membership” to Title VII, and by making an employee entitled to all relief provided under the Civil Rights Act of 1991, employees would be provided real protections for a right promised in 1935: the right to associate, organize, and have a voice in both employment and economic standing.
Of Rights and Remedies
Supreme Court Justice John Marshall once observed that a government cannot be called a “government of laws, and not of men … if the laws furnish no remedy for the violation of a vested legal right.”
The NLRA does not deter employers from violating the law nor adequately protect employees when their rights are violated. Under the NLRA, the right to join or form a union fits Justice Marshall’s definition of a right without a remedy.
Amending Title VII of the Civil Rights Act would provide a far more effective deterrent to law-breaking than the current statute. Further, such a change would begin the process of transforming the right to organize provided by the NLRA from a theoretical right into an authentic one.