Assault on Collective Bargaining Illegal, Says
International Labor Rights Group
By Jeanne Mirer and Marjorie Cohn
The International Commission for Labor Rights (ICLR)
sent a notice to the Wisconsin Legislature, explaining
that its attempt to strip collective bargaining rights
from public workers is illegal.
Anyone who has watched the events unfolding in
Wisconsin and other states that are trying to remove
collective bargaining rights from public workers has
heard people protesting the loss of their "rights." The
ICLR explained to the legislature exactly what these
rights are and why trying to take them away is illegal.
The ICLR is a New York based non-governmental
organization that coordinates a pro bono network of
labor lawyers and experts throughout the world,
www.laborcommission.org. It investigates labor rights
violations, and issues reports and amicus briefs on
issues of labor law.
The ICLR identified the right of "freedom of
association" as a fundamental right and affirmed that
the right to collective bargaining is an essential
element of freedom of association. These rights, which
have been recognized worldwide, provide a brake on
unchecked corporate or state power.
In 1935, when Congress passed the National Labor
Relations Act (also known as the NLRA, or the Wagner
Act), it recognized the direct relationship between the
inequality of bargaining power of workers and
corporations and the recurrent business depressions.
That is, by depressing wage rates and the purchasing
power of wage earners, the economy fell into
depression. The law therefore recognized as policy of
the United States the encouragement of collective
While the NLRA covered U.S. employees in private
employment, the law protecting collective bargaining in
both the public and private sectors has developed since
1935 to cover all workers "without distinction."
The opening paragraph of the ICLR statement reads:
"As workers in the thousands and hundreds of thousands
in Wisconsin, Indiana and Ohio and around the country
demonstrate to protect the right of public sector
workers to collective bargaining, the political battle
has overshadowed any reference to the legal rights to
collective bargaining. The political battle to prevent
the loss of collective bargaining is reinforced by the
fact that stripping any collective bargaining rights is
blatantly illegal. Courts and agencies around the
world have uniformly held the right of collective
bargaining in the public sector is an essential element
of the right of Freedom of Association, which is a
fundamental right under both International law and the
United States Constitution."
The ICLR statement summarizes the development of this
law from the Universal Declaration of Human Rights,
through the International Labor Organization's
Conventions on Freedom of Association (that is, the
right to form and join unions) and on Collective
Bargaining. It cites court cases from the United States
and around the world. All embrace freedom of
association as a fundamental right and the right to
collective bargaining as an essential element of
freedom of association.
Some anti-union voices argue that since federal
employees presently do not have the right to bargain
collectively, neither should state workers. In fact,
the argument should go the other way. The law cited in
the ICLR statement means that denying Federal employees
collective bargaining rights - which they have had over
the years when presidents have recognized them by
executive order - is just as illegal as denying
collective bargaining rights to state public employees.
President Obama should take this opportunity to
reinstate the rights of Federal employees to collective
Jeanne Mirer, who practices labor and employment law in
New York, is president of the International Association
of Democratic Lawyers. Marjorie Cohn is a professor at
Thomas Jefferson School of Law and past president of
the National Lawyers Guild.
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