Pro-worker abroad while rolling back trade union rights at home: the contradictions in US labour policy

While the United States has supported pro-worker policies abroad, its domestic policy stands in sharp contrast, said a UN Special Rapporteur as he wrapped up his mission to the US. We at the International Centre for Trade Union Rights have found much to concur with that assessment.

Maina Kiai – the former UN Special Rapporteur on the rights to freedom of peaceful assembly and of association – catalogued rights violations in his final report of his official mission to the United States in 2016.

Amongst the violations noted was the fact that workers face numerous obstacles in trying to exercise their fundamental rights to organise, collectively bargain and to strike in the US. In the May report, Kiai describes both the “legal framework and the practical reality” of exercising these rights as ‘dismal’.

It is perhaps a little ironic then that (as the Special Rapporteur points out) the US government has tried to position itself as a champion of workers’ rights internationally. Kiai’s report recalls approvingly that the US played a “leading role in defeating efforts at the ILO to roll back the right to strike’’. Indeed, the US has ploughed large amounts of money into labour rights programmes in other countries.

Contrary to this international policy, respect for trade union rights inside the US is far from guaranteed. Mildly put, Kiai concludes that the US is “struggling to live up to its ideals on a number of important issues…”

Confirming those findings, the International Centre for Trade Union Rights recently featured a series of articles examining the labour situation in the US in the International Union Rights journal.

Pitted against a US$4 billion union-busting industry, the right of employers to permanently replace strikers, as well as so-called ‘right to work’ laws, workers in the US struggle to exercise their rights to form unions and take collective action.

A significant proportion of the workforce has never even been covered by the law which protects those rights – the 1935 National Labour Relations Act (NLRA) – including agricultural and domestic workers and independent contractors.

For workers who are nominally protected under the NLRA, attempts at legitimate union activity are jeopardised by weak enforcement of those rights, as well as lawful practices available to employers to undermine them.

These include a form of ‘freedom of expression’ that allows employers to hold ‘captive audience’ meetings – compulsory for workers – at which they may aggressively discourage all union activity. Unions in contrast have neither the right to speak during these meetings, nor to conduct meetings without the presence of management, nor even to distribute union literature in the workplace.

Even when workers overcome these odds to organise themselves into a union, their bargaining power is severely curtailed by the fact that workers participating in strikes over wages, hours or working conditions, may be lawfully and permanently replaced by employers. The replacement workers may even vote to decertify a union on strike.

Anti-unionism: endemic – but lawful

The Nissan plant in Canton, Mississippi, is a case in point. In December 2016, IndustriALL and the United Auto Workers (UAW) submitted complaints to OECD National Contact Points in the Netherlands, Japan and France detailing “aggressive policies and practices of union avoidance, harassment and intimidation” at the plant.

In February 2017, Nissan wrote to the Special Rapporteur arguing that it had “followed domestic law’’ in its operations in Canton.

To Kiai, this defence is “emblematic of multinational corporations’ duplicity on the issue of workers’ rights”. The very fact that labour protection is today so weak in US domestic law is precisely a “legacy of decades of political lobbying by well-funded business interests,’’ he said.

It is little surprise that in this environment, a multi-billion-dollar industry of anti-union consultants has mushroomed. The Center for Worker Freedom – a ‘special project’ of Americans for Tax Reform and funded by corporate interests – was linked to union-busting efforts at the Canton plant.

Another lobby group – the National Right to Work Committee and Legal Defense Foundation (NRTW) – has been campaigning for so-called ‘right to work’ laws for nearly 50 years. Such legislation has now been adopted in 28 US states. Kiai suggests that “right to work” is a misnomer; rather they should be dubbed “right to work for less pay” laws.

While unions have a duty to represent all workers in the bargaining unit fairly (members and non-members alike), in ‘’right to work’’ states they are banned from collecting ‘’fair share’’ fees from non-members for representation by the union.

Ultimately, this cuts both the resources and bargaining power of unions. The NRTW has challenged the practice of collecting fees from non-members in numerous legal disputes and in an upcoming case, Janus v. AFSCME, the Supreme Court may well declare the practice unconstitutional for unions representing government workers.

History of a struggle

In its official response to the Special Rapporteur’s report, the US opted not to comment on workers’ freedom of association. Rather it took the opportunity to object to Kiai’s attempt to place current human rights concerns in historical context, complaining that such “scene setting’’ should be “kept within the parameters of the mandate’’.

In fact, this history – of labour law, as well as the enduring legacy of slavery and racism – remains very relevant.

In the first half of the twentieth century, the US was facing the most violent era of conflict between labour and capital seen in any industrialising nation. In a comprehensive survey of this deadly period, Paul F. Lipold and Larry W. Isaac found that between 1877 and 1950, over 1120 fatalities were recorded at confrontations on US picket lines, the large majority of these on the workers’ side, in the coal mining industry and on the railroads.

While that era of violence came to an end with the creation of a legal framework for industrial relations, these laws also drastically curtailed workers’ rights, excluded the labour movement’s more radical elements and banned their most effective tactics. When the NLRA was amended in 1947, sympathy strikes, general strikes, wildcat strikes and sit-down strikes were all prohibited, and union officers were required to sign non-communist affidavits.

Those categories of workers still excluded from the NLRA continue to fight for their trade union rights by trying to gain protection under state laws. Just last year, the New York Civil Liberties Union (NYCLU) filed a lawsuit against New York State challenging the exclusion of farmworkers from the State Employment Relations Act as a violation of workers’ fundamental rights to organise and collectively bargain.

According to law professor Juan Perea, at the time of the NLRA’s drafting the exclusion of agricultural and domestic labour was widely understood to be a “race-neutral proxy’’ to deny legal protection to a particular class of workers – predominantly people of colour. One New York politician, Vito Marcantonio, condemned the NLRA’s failure to protect farmworkers’ right to organise peacefully as tantamount to ‘virtual slavery’.

Under the new US administration, the contradiction between the US’ international labour policy and domestic violations of workers’ fundamental rights may become even more glaring.

In an interview with Thea Mei Lee and Celeste Drake of the American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), I asked about the union’s attempts to persuade the government to leverage US trade to improve workers’ rights in other countries. They suggested that President Donald Trump’s new trade appointees – US Trade Representative Robert Lighthizer and the outspoken head of the National Trade Council Peter Navarro – may be more willing than their predecessors to categorise other states’ labour rights violations as an “unfair trade practice” and impose trade sanctions, specifically against China.

But readers of Kiai’s report might be left wondering: what sort of “trade practice” then is the US’ approach to domestic protection of fundamental labour rights? As Lee noted, the US case is not “a gold standard by any means. In fact, it’s more like a tin standard...”

The UN Special Rapporteur’s full report on the United States can be downloaded here.