AFL-CIO News, March 20, 2009, Friday

AFL-CIO News

March 20, 2009, Friday

AFL-CIO News

Legal Scholars: Employee Free Choice Consistent with International Standards

by Seth Michaels, Mar 20, 2009

As the Employee Free Choice Act builds momentum to passage, opponents of the workers’ freedom to form unions are getting desperate in their attempts to mislead and distort this critical bill.

The U.S. Chamber of Commerce has joined with the U.S. Council for International Business (USCIB) for its latest spin against the freedom to form unions. The two groups are promoting a paper written by Stefan Jan Marculewicz, a management-side attorney, asserting the Employee Free Choice Act would violate the standards of the International Labor Organization (ILO). Unsurprisingly, an examination of this claim by experts shows the argument is false.


Lance Compa, a law lecturer at Cornell University School of Industrial and Labor Relations, says Marculewicz’s arguments mischaracterize ILO laws and apply them irrelevantly. In particular, it’s flatly wrong to say, as the Marculewicz paper does, that majority sign-up—legal in the United States and commonplace in nations around the world—is somehow outside of ILO standards.

Indeed, in most countries of the world, a version of card-check (i.e., workers joining the union by signing cards, signing petitions, attending assemblies or otherwise signaling their desire for representation) is the method by which previously unrepresented workers come to the bargaining table with their employers.

John Logan, research director for the University of California-Berkeley’s Institute for Research on Labor and Employment, calls the claims made in the Marculewicz paper “laughable.” He says management control of the process for forming unions means that the United States isn’t living up to ILO standards now.

In a series of decisions over the past decade, the ILO’s Committee on Freedom of Association has consistently expressed concern over the failure of the National Labor Relations Act to adequately protect American workers’ right to choose a union and engage in collective bargaining.

Contrary to Marculewicz’s assertions, Logan says that the Employee Free Choice Act, if passed, would move our nation closer to, not further from, ILO’s principles of protecting the right to form a union and bargain.

James Gross, professor of labor policy at Cornell, likewise examined Marculewicz’s arguments and found they don’t stand up to scrutiny. In fact, says Gross, by protecting workers’ freedom to choose to form a union without coercive management interference and by ensuring that workers get the chance to bargain for a first contract, the Employee Free Choice Act would move the United States closer to international standards.

The International Labor Organization has stated workers’ freedom of association includes collective bargaining and the right to a legally-binding collective agreement. Where workers cannot secure a union contract, there is no freedom of association as defined by the ILO.

Compa notes the irony of these groups appealing to international labor standards as a test of policy, given their record of disregard for such standards in the past:

Since the USCIB is suddenly so enamored of ILO principles, you might ask them if they are now willing to accept CFA [the ILO's Committee on Freedom of Association] decisions on permanent striker replacements, union representatives’ access to the workplace, exclusions of low level supervisors, university teaching assistants, TSA screeners and other workers, bargaining rights for public employees, and other decisions finding U.S. law in violation of international standards.

The fact is that the Employee Free Choice Act is needed to bring the United States up to recognized international standards of protecting workers’ freedom to form a union, as noted in a Human Rights Watch report published in January. Nations around the world have labor laws similar to the Employee Free Choice Act.

As the AFL-CIO’s Stewart Acuff notes, the global labor community supports the Employee Free Choice Act as a way to protect workers and bring U.S. laws in line with successful international norms. Acuff says that Guy Ryder, general secretary of the International Trade Union Confederation (ITUC), is enlisting global unions and their allies in the fight to pass the Employee Free Choice Act. As Ryder said in a letter to ITUC affilates:

The violation of freedom of association and the rights to organize and bargain collectively weaken the American Trade Union movement considerably. That, in turn, weakens the international trade union movement….In addition, U.S. anti-union practices serve as a destructive model for industrial relations in other countries.

Message to the spinners at the USCIB and Chamber of Commerce: This argument just doesn’t work.