Tuesday, October 24, 2006

Waste of Time?: AFL-CIO Files Complaint with UN Body over Kentucky River Supervisor Cases

AflciologoCan someone please explain to me how pursuing the matter described below is an effective use of the AFL-CIO's money and resources?  Here is the story from Yahoo! News via AP:

The AFL-CIO, a federation of about 50 labor unions with 9 million members, said it would file a complaint [yesterday] with the International Labor Organization of the United Nations about a decision this month by the National Labor Relations Board.

The decision, covering a series of cases known as the Kentucky River cases, involved the role of a supervisor.

The board ruled that nurses who regularly run shifts at health care facilities should be considered supervisors and exempt from federal protections that cover union membership. The decision potentially has major implications for workers in other fields.

"This will demonstrate how far outside the mainstream of accepted international law the U.S. is moving," said Craig Becker, a legal counsel to the AFL-CIO.

While the committee of labor law specialists from around the world has no enforcement power, the AFL-CIO is looking for support in efforts to restore the more traditional view of what makes a supervisor.

Has the AFL-CIO been diminished to such an extent that it is left to make only these symbolic points?

I wonder if the Change to Win coalition believes that this maneuver is worth the time and energy?



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For starters, Paul, look at all the publicity its statement has achieved, your post among many. It would have cost a lot of money to buy that media coverage. Second, it may very well get an ILO ruling in its favor. If so, it will have another stick with which to beat the Administration and perhaps Congress.

None of that will really accomplish much, of course, but what other weapons does the AFL-CIO have on this point? Take the case to the Roberts Court?

Posted by: Dennis Nolan | Oct 25, 2006 11:05:24 AM

One also wonders about how much time/money/resources are really involved in making this type of complaint.

Further, it helps the AFL-CIO make a point it has been making in other contexts: U.S. labor law rules fall below/violate established international norms. Will that change the law? No. Will it help, at the margins, politically when there's a different environment? Could be.

Posted by: Joseph Slater | Oct 26, 2006 10:54:04 AM

Paul – In your October 24 posting, you asked how the AFL-CIO’s complaint to the ILO Committee on Freedom of Association alleging that the NLRB’s recent decisions in the Oakwood Trilogy violate international labor standards “is an effective use of the AFL-CIO's money and resources.” It’s particularly distressing that in the twenty-first century a professor of labor law would question the role of international labor rights. Here’s a quick answer.

It’s all too easy to judge the adequacy of U.S. labor law solely by reference to evolving NLRB doctrine and within the statute’s administrative and judicial process. Even under that view, decisions by the Bush-dominated NLRB have weakened the protections accorded to workers under the NLRA, as Oakwood so patently demonstrates.

But the decision in Oakwood isn’t just about whether the majority interpreted the term “supervisor” incorrectly under Section 2(11). In an increasingly global economy, the benchmarks for judging the treatment of workers under U.S. law must include standards that are set by the global community. Two of the most important standards are set forth in ILO Conventions 87 and 98, which guarantee workers the right to form and join labor unions and engage in collective bargaining, and which the U.S. is bound to uphold by virtue of its membership in the ILO. The Committee’s jurisprudence interpreting those Conventions starkly demonstrates how U.S. labor law, in theory and in practice, fails to protect these basic worker rights. Human Rights Watch documented these failures in a landmark report in 2000, including the NLRA’s failure to protect agricultural workers, domestic workers, independent contractors, and supervisors. The Board’s decision in Oakwood further compounds the United States’ failure to abide by its obligations under Conventions 87 and 98 by depriving workers who are not supervisors of their fundamental rights.

We understand only too well that the ILO has no enforcement authority, but that’s not the point. Unless and until the United States owns up to its serious breaches of international labor commitments, it can hardly expect other nations, which often enjoy serious trading advantages through systemic labor abuses, to do so. And, by repeatedly calling to the attention of the ILO, which remains the world’s preeminent labor agency, the U.S. government’s deepening failures to protect the rights of workers, we can mobilize international pressure on our government with respect to core labor rights.

We filed our ILO complaint as part of a much larger campaign related to Oakwood, which included street protests around the country in anticipation of the decision, and obtaining the public support of members of the clergy and labor law professors nationally for preserving the rights of the putative “supervisors” in these cases to organize and bargain. The outcry against the decision in the mainstream press (including the New York Times, Washington Post, and Kansas City Star), which we document in our complaint, as well as a story on The Colbert Report, attest to the widespread public concern over this issue. In short, we use every tool at our disposal to help workers achieve meaningful rights of association and bargaining. It’s a long struggle. We hope you’re with us.

Posted by: Deborah Greenfield | Oct 31, 2006 2:38:00 PM

Thanks for everyone responding to this post. I too am concerned with the plight of the American workers and can attest that I was one of the labor law professors that Deborah refers to in her post that asked for oral argument in the Kentucky River supervisor cases because I recognized the importance of that case to labor relations in this country.

All that being said, my larger point is that I think that rather than filing with the ILO to make unenforceable symbolic points, more time and energy should be spent organizing and getting more collective bargaining rights for workers on the grassroots level. This is where I agree with the Change to Win coalition. Less time on using union money to sway political campaigns and international opinion and more time on the ground explaining to workers the potential benefits of unionization.

In the end, Deborah, I am with the workers and that does not change just because I am do not always agree with the AFL-CIO in how it chooses to use its resources. Indeed, I find it distressing that you so casually throw out accusations that I do not understand the role of international labor rights. I do and you just need to look at past posts on this blog to see that that is the case.

In any event, the AFL-CIO needs to be careful not to label those who disagree with it in using certain tactics as being against workers. Indeed, that sounds starkly like the way this administration handles those who disagree with it.

Posted by: Paul | Oct 31, 2006 3:40:14 PM

Regarding Change to Win, I suggest to colleagues interested in this debate to check the importance of UNITE-HERE's complaint under the OECD Guidelines for Multinational Corporations in the Brylane case. If anything, the OECD's guidelines are even "softer" and more symbolic than the ILO system. But the OECD complaint provided the international context for the union to mount a cross-border solidarity campaign with the French unions (Brylane's parent company is a French multinational)which -- along with the union's on-the-ground organizing campaign at the Indiana distribution center -- resulted in a neutrality and card check agreement, a union organizing win, and an excellent first contract.

International complaints are indeed a waste of time if they are not integrated into a broader strategy that can make use of them. That is one goal of the ILO complaint in the Oakwood case, to be able to put employers on the defensive as violators of international human rights standards in campaigns on the ground, especially if they file UC petitions.

A favorable ruling from the ILO Committee on Freedom of Association will boost support for trade union goals in the U.S. human rights community, an important ally in a movement for a legislative fix to Oakwood. It will also provide solid ground for enlisting European and other foreign trade union and NGO support in disuptes involving EU-based MNCs. They take the ILO very seriously.

The last sentence of the AFL-CIO's complaint expresses hope that it "will have the added benefit of bringing dramatic public attention to the work of the Committee on Freedom of Association in a country and a labor law community that, lamentably, know little about the ILO and the authoritative role of the Committee on Freedom of Association." Another worthy goal.

A couple of final points: while these international cases take some time and resources, they are usually quite modest compared with Board or court litigation. If international complaints are done right, as part of a larger strategic campaign, they are just a small fraction of overall campaign costs.

Finally, I thought Deborah's posting was quite collegial, not nearly as hostile as Paul's reaction suggests.

Posted by: Lance Compa | Nov 1, 2006 6:59:39 AM

Again, I appreciate all of the thoughtful comments to this post. In particular, Lance makes a very good point as to where international labor law can be used effectively in a case like Brylane. It seems like these multinational corporation cases are well-suited to an international approach.

I just don't see Brylane and Oakwood being similar in this regard and I am skeptical that outside the labor community that the ILO complaint will bring "dramatic public attention" to the plight of workers in this country. Of course, it will be interesting to see if I'm wrong when, and if, the ILO rules in the AFL-CIO's favor.

Finally, as far as collegiality and all that, I initially read Deborah's post as being somewhat condescending and taking a "you are either with us or against us" approach. But given Lance's reading of the same post, I am willing to defer to his judgment that her post was not meant to be hostile.

Posted by: Paul Secunda | Nov 8, 2006 10:37:48 PM

Paul – I’d like to call your attention to a recent ILO decision that highlights at least one of the reasons we continue to resort to that international body in our efforts on behalf of securing workers’ rights (see your post of 10/24). On November 15, in response to a complaint filed by the American Federation of Government Employees, the ILO issued a decision by its Committee on Freedom of Association which holds that the U.S. Government violated fundamental workers' rights standards (specifically, Conventions 87 and 98) when the Transportation Security Administration issued an unreviewable order denying the agency’s 56,000 airport screeners the right “to engage in collective bargaining or be represented for the purpose of engaging in such bargaining.” The decision criticizes the U.S. Government’s “ever-enlarged” definition of national security as a rationale to deny workers their core labor rights.

A joint press release by John Gage and John Sweeney, the presidents of AFGE and the AFL-CIO, respectively, resulted in coverage by Reuters and USA Today (as well as the Daily Labor Report). Now, people across the country, on the eve of the nation’s busiest air travel day, understand that the workers who for hours at a time check boarding passes and identification, operate x-ray machines, conduct wand searches,ask you to remove your shoes, make sure those plastic bins are where they need to be, and try to keep the security lines moving, are prohibited from negotiating over job safety, health conditions, work assignments, and job rotations. In addition, the article in USA Today (available at http://www.usatoday.com/news/nation/2006-11-19-union-tsa_x.htm) discusses U.S. Representative Nita Lowey’s efforts to restore airport screeners’ fundamental right to engage in collective bargaining. Rep. Lowey, echoing the language of the ILO, states that “union representation would provide ‘basic worker protections that will ensure screeners are treated like professionals.’”

USA Today reported circulation of 2.27 million this year. Readers of the Reuters story add to that total. So it’s hard to imagine how we could have achieved more widespread and swift public education on this issue. On that basis alone, we believe that the ILO complaint has more than justified itself. While it’s now up to us to continue to advance the fight, at least the public knows what it’s all about.

Posted by: Deborah Greenfield | Nov 20, 2006 8:53:40 AM

I've had the unique privilege to have been a Teamster-represented airline ramp worker, a Harvard Law graduate, an NLRB field attorney and, now, a labor law professor. I have always been amazed at how much the labor and employment law "in the head" differs from the law as it exists "on the street." I'm convinced that many workers never experience the cognitive dissonance that is created by the conflict between the two "regimes." I began my experience of that dissonance as a Philadelphia-based ramp agent as USAirways was breaking the Teamsters Union in the early 1990s. It was enough to drive me to law school. I think that anything (including the incremental gravitas of contrary world opinion generated in part by ILO decisions) resulting in an increase of that dissonance is beneficial.

Posted by: Mike Duff | Nov 27, 2006 11:54:18 AM

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