Commentary

Author: Edgar Moore

Publication: Omaha World Herald

Date: Friday, May 6, 2011

The writer is a community associate of the William Brennan Institute for Labor Studies at the University of Nebraska at Omaha.

It appears that a combination of forces in Nebraska, including the Platt Foundation, The Plains State Legal Foundation and other business interest has decided that public sector workers in Nebraska should be treated like second class people in that they have decided it is to their advantage to deprive the state's public workers of the basic human right to bargain collectively for wages, hours and conditions of employment. This essay will examine the United Nations' Universal Declaration of Human Rights and the manner in which the CIR reaches decision in collective bargaining dispute settlement.

Article 23 of the Universal Human Rights Declaration adopted by the United Nations in 1948 reads:

1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
4. Everyone has the right to form and to join trade unions for the protection of his interests.

Most major advanced democratic countries honor collective bargaining rights of public employees. All European Union countries allow public sector workers to bargain collectively. In June 2007 the Supreme Court of Canada extensively reviewed the rationale for regarding collective bargaining as a human right. In the case of Facilities Subsector Bargaining Association v. British Columbia, the Court made the following observations:

"The right to bargain collectively with an employer enhances the human dignity, liberty and autonomy of workers by giving them the opportunity to influence the establishment of workplace rules and thereby gain some control over a major aspect of their lives, namely their work. Collective bargaining is not simply an instrument for pursuing external ends…rather [it] is intrinsically valuable as an experience in self-government…Collective bargaining permits workers to achieve a form of workplace democracy and to ensure the rule of law in the workplace. Workers gain a voice to influence the establishment of rules that control a major aspect of their lives." In a 2008 case, the European Court of Human Rights found that Turkey's restrictions on public employee bargaining rights violated the European Convention on Human Rights."

The next three paragraphs describe the manner in which the CIR approaches decision making in settling industrial disputes. They are spelled out in NEBRASKA COMMISSION OF INDUSTRIAL RELATIONS CASE NO 1217.

"Generally, the goal of labor law is to equalize the bargaining power between employer and employees. In order to equalize bargaining power, the Commission follows three categories of collective bargaining subjects: mandatory, permissive, and prohibited. The distinction between the different categories of bargaining subjects is important.

"Mandatory collective bargaining subjects are those which relate to 'wages, hours, and other terms and conditions of employment, or any question arising thereunder.' Additional mandatory subjects of bargaining are those which 'vitally affect' the terms and conditions of employment.

"The Industrial Relations Act only requires parties to bargain over mandatory bargaining subjects. Permissive bargaining subjects are legal subjects of bargaining, which do not fit within the definition of mandatory subjects. Either party may raise a permissive subject during bargaining, but the non-raising party is not required to bargain over permissive subjects. Finally, prohibited bargaining subjects are topics that the law forbids the parties from agreeing to bargain."

Contrary to the allegations of those opposing collective bargaining for public employees, having the right to bargain collectively does not guarantee outcomes sought by workers and their unions. Nor does it mean that cost savings cannot be achieved. Workers' representatives and representatives of employers, whether public or private, have a right to bargain hard for their interests. The reason why collective bargaining is recognized as an international human right is that the compromises resulting from a process in which workers have an autonomous voice reflect principles of dignity, equality, and democracy consistent with human rights principles.

On the other hand, many undemocratic countries restrict or prohibit collective bargaining by public employees. For example, the Egyptian government had prohibited public sector collective bargaining. It allowed public employee unions to exist, but in name only, favoring government-controlled unions and quashing any attempt to bargain collectively. It will be interesting to see how the new Egyptian government behaves.

The United Nations' Human Rights Committee has made clear on multiple occasions that the International Covenant on Civil and Political Rights includes collective bargaining. The United States has signed and ratified the covenant but our government has not ratified the Covenant's Optional Protocol which would allow Americans to seek remedy through the UN for alleged rights violations by the US Government. This Declaration was passed unanimously by the General Assembly.

The right to collectively bargain is recognized through international human rights conventions. Article 23 of the Universal Declaration of Human Rights identifies the ability to organize trade unions as a fundamental human right. Item 2(a) of the International Labor Organization's Declaration on Fundamental Principles and Rights at Work defines the "freedom of association and the effective recognition of the right to collective bargaining" as an essential right of workers.

Public employees serve us well and should be treated well as human beings.