Sunday, August 21, 2011

Reading the ACLU Policy Guide (Pt. 5)

Series explanation and overview here.

Note: These are my summaries of the 1995 version of the guide, not the policies themselves.

Labor-Business

Policy 48 — Right to Organize

"The rights of employees to organize and bargain collectively are aspects of freedom of association."

Both public and private employees are covered. There's a note here about the ACLU supporting this right for teachers at religious schools specifically.

This 1980 policy spends some time talking about a contemporary issue involving J.P. Stevens Company (dramatized in the film Norma Rae). Because the J.P. Stevens Company would not recognize the right to organize, and because it discriminated according to sex and race, the ACLU supported the ongoing boycott effort.

Policy 49 — Right to Strike

The ACLU supports the right to strike, as derived from the rights of freedom of association and speech, as well as the abolition of slavery in the Thirteenth Amendment. Specifically, the government may not punish people for ceasing to work.

The one justifiable exception is when sudden striking poses "an imminent and substantial threat to the public health and safety of a community." And even then, the ACLU insists there be an effective alternate method for settling the kinds of disputes which lead to strikes.

Policy 50 — Closed Shop, Union Shop and Right to Work Laws

The ACLU does not believe requiring workers to pay labor union fees infringes on their civil liberties, so long as the required amount does not exceed that worker's fair share of collective bargaining costs and "other costs of representation." This policy describes unions as "instruments" of "industrial government." Because citizens receive the benefits of taxes to civil government, they may not refuse to pay taxes; the same principle applies here for industrial government.

However, it does violate freedom of association to require workers to actually join the union, follow union rules, or pay more than the amount described above. Nor can any fee be charged before a person is hired.

Required union fees may be used to lobby for referendums or for "laws beneficial to employees," but not for political candidates. As there may still be conscientious objection to the use of funds, the ACLU supports allowing such workers to make a charitable donation of the required amount.

Policy 51 — Picketing in Labor-Management Disputes

There's nothing here not covered by the policies in part four of this series, except to affirm that picketing in the context of labor-management disputes is included.

Policy 52 — Freedom of Speech and Unionization Campaigns

Freedom of speech is affirmed in the context of workers arguing for — and employers arguing against — unionization. If an employer addresses workers during work hours to speak against unionization, pro-unionization workers must be given an equal opportunity to address workers during work hours.

Both sides must stick to making arguments for their position, not coercing anyone to comply.

Policy 53 — Free Speech Rights of Corporate Employees

Speech which does not "substantially, materially and directly" affect an employee's ability to do his or her job (or others from doing their jobs) is protected by the First Amendment.

Policy 54 — Internal Union Democracy and Equal and Fair Representation

Unions have an especially strong duty to operating under non-discriminatory and democratic standards because they are meant to represent all workers fairly as a form of industrial government.

Every union member should have free speech and association rights within the union, recognized by the union. Every member should be allowed to vote, to hold office, and to only be removed from office in a regular fashion. No discrimination based on "race, religion, color, sex, age, sexual orientation, disability, national origin, opinion or lack of United States citizenship." And finally, fair access to resolving grievances and due process for any kind of discipline.

Policy 55 — Due Process Rights of Private Employees

All private employees have the right "not to be disciplined without just cause," "notice and hearing in cases of termination or discipline," and "notice and hearing in cases of the closing of entire businesses."

Oddly, this policy is more of an internal ACLU note that they need to develop policies in this area.

Policy 55a — Privacy Rights of Private Sector Employees

Employee access to records about themselves is here affirmed to be covered by the same principles as Policy 273 — Data Collection, Storage, and Dissemination. (It will be a few more posts before I get to that!)

Employers may not inquire about aspects of employee personal life and health which do not directly concern job performance. "The employer's legitimate concern for maintaining an acceptable level of job performance can be satisfied by measuring job performance." If job performance does appear to be impaired, establishing "probable cause related to substance abuse," then employers may test for drug abuse.

If government agents attempt to question employees in the workplace, employers have a positive duty to inform employees of their constitutional protections and may not punish employees who take advantage of these protections.

"Individuals are entitled to segregate their personal lives from the requirements of their jobs." For example, employers may not take into account "[m]arital status, parental status or sexual orientation" at the workplace.

Employers must give a justification for any rule about personal appearance, showing that it is "reasonably related to job performance."

Every employee is entitled to some personal storage at work which the employer may not examine.

Policy 56 — ACLU and Intra-Labor Conflicts

The ACLU expresses an interest in getting involved in conflicts between unions and members when the standards expressed in Policy 54 are not being followed.

Policy 57 — Union and Corporation Political Activity

As already mentioned in Policy 50, the fees paid by non-members to a union may not be used "to support the political activities of the union." Collective bargaining and even lobbying for laws relating to working conditions don't count as political activities.

The ACLU supports the right of union members to express opinions at odds with official union policies, with a possible exception of when this threatens "the union's well-being."

Policy 58 — Restrictions on Union Members and Officers

The ACLU doesn't believe union membership (or qualification for union office) should ever be contingent on a member's beliefs. Only action taken against the union should count against members, and mere advocacy is not the kind of action meant. (Which makes me wonder what the exception in the previous policy could be about.)

The government may not punish unions for having members with certain beliefs. Specifically, the ACLU condemns the Communist Control Act of 1954.

Policy 59 — Government Employment

Government employees also have the right to organize into unions and strike. Teachers are specifically mentioned here.

Policy 59a — Government Trusteeships of Labor Unions

If a union is unable to follow the kinds of standards in Policy 54, the ACLU points at "government supervised elections or trusteeships" as a remedy. This may be temporarily necessary to clear out criminal racketeering control of a union and return the union to legitimate democratic status.

An alternative remedy would be court-supervised elections. Either way, there is a danger of the government causing harm to civil liberties, so this policy includes a list of relevant guidelines to guard against that.

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