Response to Democratizing the Demand for Workers’ Rights

Joseph A. McCartin’s essay makes a valuable contribution to debates on labor movement revival. He sees danger in labor advocates’ new focus on human rights, and calls instead for making a renewed (and perhaps re-phrased) notion of “industrial democracy” labor’s central theme.

I appreciate McCartin’s insights but disagree on emphasis. International human rights instruments and international labor rights law have created careful definitions of the right to organize and the right to bargain collectively. Arguing from a human rights base, advocates can identify violations, name violators, demand remedies, and specify recommendations for change. Reports and advocacy by Human Rights Watch, American Rights at Work, the AFL-CIO’s Voice@Work campaign, and others are doing just that.

Industrial democracy is too diffuse a concept to sustain organizing, bargaining, and labor law reform campaigns. In McCartin’s primary use of the term, it means majoritarian democracy: “the pro-union majority against the anti-union minority.” But that is already built into our labor law system. The 1935 National Labor Relations Act (NLRA) requires majority support in a bargaining unit to negotiate for a contract binding all workers. Majority rule is also built into most union constitutions for electing leaders, setting bargaining demands, and ratifying contract terms. Calling for industrial democracy in these terms is pushing an open door.

Industrial democracy can also mean workplace democracy, with workers gaining a greater voice in business decisions. Beyond that, it implies internal union democracy, with fair leadership elections and protection for union dissidents. All these are important, but with such dispersed meanings, industrial democracy lacks the precision and unifying force of the human rights argument, especially in a campaign setting.

Labor Law’s Original Sin

International human rights were not developed enough in the 1930s to serve as a rights foundation for labor law. U.S. labor law and practice are set on an economic policy foundation, not a fundamental rights foundation. Congress based passage of the NLRA on the Constitution’s commerce clause, saying that workers needed protection for organizing and bargaining to reduce industrial strife and promote freer flowing interstate business.

Congress could have based the law on fundamental rights under the First Amendment’s promise of speech and association, the Thirteenth Amendment’s affirmation of free labor, or the Fourteenth Amendment’s guarantee of equal protection of the laws. It did not. The Supreme Court upheld the constitutionality of the NLRA in 1937, saying the law reduces strikes, not that it protects basic rights.

Without grounding in basic rights, workers’ organizing and bargaining were vulnerable to shifts in the economy and in economic policy. When ...