Earlier this month, a group of U.S. unions–the AFL-CIO, SEIU, and Workers United–filed a complaint with the International Labour Organization's Committee on Freedom of Association. In the filing, they convincingly argue that U.S. labor law does not protect workers’ rights to freedom of association and collective bargaining. These rights are enshrined in ILO Conventions 98 and 87 and are considered to be fundamental under the ILO’s Declaration of Fundamental Rights at Work.
The submission provides detailed examples of union busting by U.S. companies such as Starbucks: threats, dismissals, and vitriolic rhetoric about the dangers of unionism, along with the company’s refusal to follow the orders of the National Labor Relations Board when it found that Starbucks is acting illegally.
Starbucks keeps insisting it hasn't broken any laws, despite a mounting legal trail to the contrary. The NLRB under the Biden administration is eager to vigorously enforce the law on the books. But current laws simply allow so many loopholes, so much room for stalling, and give such a wide berth to “free speech” against unions that there is a limit on what the NLRB can do. The former CEO of Starbucks Howard Schultz felt so comfortable in his anti-union position that he declared on national TV that he wants Starbucks to remain a union-free employer.
As a former organizer and labor lawyer, I've long argued that U.S. law, as practiced, affords workers very little protection. In the 1980s, before the international standards had much relevance to global companies, lawyers representing U.S. companies argued that the U.S. should not ratify the International Labour Organization's conventions because to do so would prohibit U.S. employers from campaigning against unions. Though repugnant, this was at least an intellectually honest position, and, on that basis, the U.S. refused to ratify the conventions.
Today, employers have shifted their argument. They want not only to protect employer interference in the U.S. but also to normalize this as a global practice. Now, U.S. employers don’t hesitate to sign on to global principles such as those of the UN Global Compact, which obligate them to respect international rules. However, the employers argue that their union-busting practices are consistent with the ILO standards because “free speech” overrides “non -interference,” employees’ right to choose or not to have a union without pressure one way or the other from an employer. By doing so, corporations claim to have an internationally sanctioned right to harangue their employees almost without limit–and even to lie to them about the “dangers” of unions.
U.S. employers seem to think that non-interference means you can't shoot someone as in the days of old. Otherwise, almost everything is allowed or, at least tolerated. It is understood by trade unionists in the U.S. that employers will always interfere unless there is a private agreement to the contrary.
What explains the shift? International standards are increasingly becoming part of the fabric of global governance. They might be embedded in trade agreements, procurement rules, or within the codes of conduct of investors. It's not acceptable anymore for a global company to tell its investors that they reject international labor standards. So instead of being honest, employers seek to distort the meaning of international labor standards beyond recognition.
It's time for the ILO to make clear that U.S.-style interference with workers’ efforts to come together in a union violates the ILO Convention on Freedom of Association (convention 87). Such a finding might not deliver a change in U.S. law, but it would send a message to companies that they can't hide behind the United Nations and the ILO to justify their union-busting tactics.
Christy Hoffman is general secretary of the UNI Global Union, the global union federation for the services industries which represents over 20 million workers in 150 countries.
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