The first answer many of us are likely to give to this question is: from the Constitution.
Every American likes to say to himself or herself, “I’ve got my rights.” It’s natural to suppose that our constitutional rights travel with us wherever we go.
But this answer is, unfortunately, wrong. The Constitution protects us only from action by the state, that is, the government. It does not protect us from private employers. If you work for a government, city, state or federal, you can claim constitutional rights to freedom of speech, to freedom from unreasonable search and seizure, to due process, to equality before the law. However, in the private sector the employer has no legal obligation to respect your constitutional rights.4
In the private sector, when you punch in you leave your constitutional rights behind. That’s one of the reasons why it’s so important for workers to take collective direct action without relying on the courts. In the private sector, you do not have a constitutional right to free speech: if your employer makes an unsafe product, and you individually “blow the whistle” on him by informing the media, you may legally be fired for doing so. There is a dreadful line of cases in which employees have been held to be justly discharged because they made statements that were disloyal to the employer.
Likewise, in the private sector you are not innocent until proven guilty. Even within a unionized workplace, when an employer disciplines or discharges you, you don’t stay on the job until the grievance is arbitrated. Instead, you are off work and lose pay, and get the money back only if you win the grievance.
Furthermore, most private sector employees are employed “at will,” a pernicious doctrine adopted by judges during the unbridled capitalist expansion of the late nineteenth century. An “at will” employee can be fired, demoted, or receive a pay cut at any time for almost any reason, even a very bad reason, with no notice at all. This book will discuss those reasons for which an employer may not take adverse action against a worker, even an “at will” worker. We will also show that just because a boss may legally take an action does not preclude workers from contesting that action.
Thus, in the private sector the Constitution does not protect us, but there are two other sources that give us some of the same protections we enjoy, at least on paper, outside the workplace.
One source of rights in the private sector is the union and the collective bargaining agreement. At this writing, only 7.5% of private sector workers are in a unionized workplace. If you are one of them, it’s a good idea to know the contract backward and forward, and to carry a copy on your person at all times.
Seniority, for instance, comes from the collective bargaining agreement. But seniority provides only partial equality before the law.5 It ensures that the person who has worked longest will be laid off last, but it does not mean that foremen will be governed by the same rules as hourly employees. If an hourly worker starts a fight, he or she is likely to be fired because of a shop rule against fighting. But that rule doesn’t necessarily apply to the foreman when he starts a fight. Thus the union and the collective bargaining agreement create a halfway citizenship, but not a full citizenship.
A second source of rights in the private sector is federal law. These rights were created by struggle. For instance, the struggle for the eight-hour day gained national prominence in 1886, when a sizable portion of the entire American labor movement took part in a political strike on its behalf. The international labor holiday, May Day, was one result. Time and a half pay for more than forty hours of labor in a week was finally recognized by Congress more than fifty years later in the Fair Labor Standards Act (the Wages and Hours Act) of 1938.
A partial list of other rights recognized by federal law includes:
Most of these rights are discussed in more detail later in this booklet.
Collective bargaining makes it possible for working people to enforce rights through their unions. But collective bargaining sometimes takes away rights that workers would otherwise enjoy because of laws like those just described.
The leading example is the right to strike. Close to 100 percent of collective bargaining agreements contain a promise not to strike (and usually also, not to slow down or otherwise interfere with work on the shop floor, and sometimes, not to picket) during the life of the contract.
You might wonder how this is possible, since Section 13 of the NLRA stated explicitly: “Nothing in this Act shall be construed so as either to interfere with or impede or diminish in any way the right to strike.”
The reality is that within a dozen years after passage of the NLRA in 1935 the right to strike was interfered with, impeded, or diminished in the following three ways:
How do courts justify the abrogation of the right to strike by labor-management negotiators? The answer is twofold.
The courts often say: “You have the right to strike, but if you choose to give it away by ratifying a collective bargaining agreement with a no-strike clause, you have the right to give it away, too.” This makes no sense because the ordinary worker has very little control over what goes into his or her contract. It is pure fiction to say that the ordinary union member has knowingly and voluntarily given up, or “waived,” the right to strike.
The courts also often say: “It’s all right to take away your right to strike because now that you have a union, you don’t need to strike.” The assumption here, which the United States Supreme Court has stated in so many words, is that Congress gave workers the right to strike and picket only to help them form unions. Once unions come into existence, according to this theory, workers should be prepared to let the union represent them rather than continuing to act on their own behalf. This argument, too, is erroneous because there is nothing in the legislative history of the labor statutes to justify the conclusion that the worker’s right to concerted activity ends when a union is elected or when collective bargaining begins.