The American Prospect, November 8, 2010, Monday

The American Prospect

November 8, 2010, Monday

The American Prospect

Slumming in America

Human-rights arguments are effective tools for shaming European companies into good labor practices in the U.S.

Lance Compa | November 8, 2010

Get back to work, or we'll hire permanent replacements to take your jobs! That's what management at Robert Bosch, a German multinational firm with 270,000 employees worldwide, told union members who exercised their right to strike in December 2005.

Bosch's message might come as a surprise to anyone who reads the company's website, which promises "respect and support" for international labor standards, especially International Labor Organization (ILO) norms on workers' freedom of association. Bosch's threat directly contravened an ILO standard that says threatening or using permanent replacements to break a strike violates workers' freedom of association. Bosch's threat also ran counter to labor practices at home in Germany and throughout Europe, where permanent replacements are prohibited or, in the case of Germany, simply unheard of. No employer -- including Robert Bosch -- has ever tried using them there.

The 2005 strike wasn't taking place in Europe, however, but at Bosch's packaging equipment plant in New Richmond, Wisconsin, where the company was demanding wage cuts and higher health-insurance payments. Bosch acted legally under U.S. labor law, which uniquely allows employers to permanently replace workers who strike. Most other countries permit only temporary replacements. Some prohibit replacements altogether. Faced with permanent replacement, the Wisconsin workers returned quickly on management's terms.

If Robert Bosch lived up to its commitment to ILO standards, it would not have exploited weak U.S. labor laws to play the permanent-replacement card. This difference between rhetoric and action is the heart of a new report by Human Rights Watch, which I authored, on violations of workers' freedom of association in the United States by European multinational firms. The report shows how European corporations claiming commitment to international labor standards have a blind spot when it comes to workers' rights in the United States.

The HRW report is titled A Strange Case, an allusion to Robert Louis Stevenson's The Strange Case of Dr. Jekyll and Mr. Hyde. It cites well-known European firms based in Germany, France, Britain, and elsewhere that publicly embrace the Universal Declaration of Human Rights, ILO declarations and conventions, guidelines of the Organization for Economic Cooperation and Development (OECD), and other international instruments enshrining workers' freedom of association as a basic human right, but that proceed to violate them in their U.S. operations. European firms adopt anti-union practices in the United States that they would never try at home, where most of their employees are represented by unions. The companies deal with unions forthrightly in a "social partnership" framework encouraged by European Union policies.

Striker replacement is just one feature of U.S. labor law that runs counter to international standards on freedom of association. Other features withhold protections for farmworkers, household domestic employees, "independent" contractors who are really dependent on one employer, and low-level "supervisors" who aren't really part of management at all. Worker protections are further undercut by the disparity in U.S. labor law requiring authorities to seek injunctions against union unfair labor practices but not against employer unfair labor practices.

Non-interference in workers' organizing is the key international standard on freedom of association. The most common violations allowed under U.S. law are aggressive, one -- sided, fearmongering campaigns that employers launch when workers try to form unions. Managers can haul workers into captive -- audience meetings, forbidding any talk-back, to hear "predictions" of workplace closure if employees form a union, as long as the predictions are not threats. This prediction-versus-threat distinction pleases judges and lawyers but leaves workers baffled and scared.

"WE WERE AFRAID TO EVEN LEARN ABOUT THE UNION."

In 2000, then-United Nations General Secretary Kofi Annan created the U.N. Global Compact as a membership forum on corporate social responsibility for global firms. Companies that join the Global Compact pledge to honor its 10 "principles" that start with workers' freedom of association. When the German telecommunications giant Deutsche Telekom signed on to the U.N. Global Compact in 2006, the firm proclaimed, "This commitment is based not only on the values of the Global Compact but on the internationally recognized conventions, guidelines and standards of the ILO and the OECD. Our Social Charter governs how we deal with issues such as human rights as well as cooperation with unions."

Deutsche Telekom touts a "social partnership" with ver.di, the union representing 80,000 of its active German employees, even after a six-week strike in 2007. Under Germany's "co-determination" laws requiring employee representation on corporate boards, worker representatives from both white-collar and blue-collar unions hold half of the 20 seats on Deutsche Telekom's supervisory board. But top managers at the company's U.S. subsidiary, T-Mobile USA, warned frontline supervisors to report "newly developing social relationships," "employees engaging in group behavior," and "employees who talk a lot about rights" as danger signs of possible union activity.

One day after supporters of Communications Workers of America at T-Mobile's call center in Allentown, Pennsylvania, handed out flyers to workers exiting the parking lot (standing on public property, as was their legal right), "the general manager called everybody into focus groups, about 15 or 20 people at a time," T-Mobile worker Tammy Todora told HRW. "He was putting the fear into everyone's head about the union, that the union would create problems."

"People were too scared to ask questions," Angela Joseph, another T-Mobile employee, told HRW, "like he would think they were against him. We were afraid to even learn about the union."

"THESE ARE NOT THE RIGHT PEOPLE FOR YOU."

Tesco is a mammoth U.K.-based global food-marketing firm that claims to honor international labor standards and to deal forthrightly with unions at home and throughout the world. Most of Tesco's store-level employees in Britain are union -- represented. The company told Human Rights Watch that it has "positive relations with trade unions around the world." But bosses at Tesco's new subsidiary in the United States, called Fresh & Easy Neighborhood Markets, jumped at the chance to apply U.S.-style union-busting at its new chain of food markets in the Southwest.

One of the company's first actions was to hire employee -- relations directors with "primary responsibility" for "maintaining non-union status and union avoidance activities," according to recruiting advertisements. Once in place, Tesco's human-resources management proceeded to hammer its anti-union message at new employees.

Shastina Fuhrman was hired in November 2007 as an hourly paid "team lead" employee in Fresh & Easy locations in San Diego. "I was one of the original 100 Fresh & Easy hires," she told HRW. "I grand-opened two stores for them."

"Two weeks before the first opening, I went to a big meeting in San Diego with all the big guys from management," she said. "I remember the top British manager saying, 'You are part of the company now, part of a Fresh & Easy family. There is no need to have a union here. Why would you want a union?' and things like that. Another British guy said, 'Unions just want to protect lazy workers.'"

Fuhrman added, "It was constantly driven home to us in team lead meetings that we should tell employees they have no need for the union, that the company will take care of them so they don't need a union. When the union started passing out flyers outside our store, my manager told us, 'You don't want to be part of it. These are not the right people for you.'"

LAWBREAKING, TOO

European firms in the HRW report did not just "lawfully" violate international standards thanks to weak U.S. laws; they also ran afoul of the National Labor Relations Act. In August 2010, for example, the National Labor Relations Board (NLRB) ruled that DHL, which is owned by Germany's Deutsche Post, unlawfully threatened, spied on, and discriminated against workers trying to form a union at the company's Pennsylvania sorting center. Deutsche Post has a code of conduct "based on international agreements and guidelines, including the Universal Declaration of Human Rights (UDHR), the conventions of the International Labor Organization and the Global Compact of the United Nations."

T-Mobile went too far when managers told employees to report on each other's union activity. In the wake of an investigation by the NLRB, T-Mobile posted a notice promising not to "promulgate, maintain, or enforce rules that ask or require you to report to us about your co-workers' support for, or activities on behalf of" the union. But a notice on bulletin boards cannot overcome the effects of management's driven-home message, reminiscent of the refrain in a song by The Police: "Every move you make ... every step you take, I'll be watching you."

In June 2010, two NLRB judges ruled that Tesco at stores in California and Arizona interrogated employees about their union activity and issued an unlawful "gag rule" forbidding employees from sharing written materials or talking about the union at work. Tesco appealed the judges' orders to post a notice on store bulletin boards promising not to repeat this conduct -- the only remedy available under the National Labor Relations Act for such violations.

The HRW report concluded with recommendations for stronger "due diligence" by European headquarters over American managers to ensure application of company commitments to international labor standards. It also called for a strengthened complaint mechanism under OECD guidelines and stronger oversight by government and European Union officials of European multinationals in their U.S. and other foreign operations. Finally, the report recommended reforms in U.S. labor law to come into compliance with international labor norms.

TWO COMMUNITIES CONVERGE.

Since its release in September, the HRW report has become a catalyst for transnational advocacy within both the labor and human-rights communities. The Communications Workers, United Steelworkers, Service Employees, Food & Commercial Workers, and other American unions are using the report to build support among counterpart trade unions in Europe. HRW offices in London, Paris, Berlin, and Brussels are introducing European human-rights groups to the realities of workers' rights violations in the United States.

These are not just "pity poor us" campaigns, either. U.S.-style management interference is also making inroads in Europe. Just two weeks after the HRW report came out, a U.K. poultry-processing company named Cranberry Foods used an American anti-union consulting group to spoil workers' organizing in a plant near Manchester. Some U.S.-based anti-union consultants are setting up shop in Eastern European countries that recently joined the European Union. Alerted by the HRW report, trade unions and human-rights groups are developing strategies to turn back the U.S. union-busting model.

Action on the HRW report reflects a new convergence of labor and human-rights advocates who long traveled parallel tracks without meeting. Trade unionists faced organizing and bargaining challenges. Human-rights groups had torture, genocide, and brutal dictatorships aplenty to occupy their attention. But given the pressures of globalization on workers' rights and human rights, both advocacy communities extended their boundaries in recent years to embrace each other's concerns.

In 2009, Amnesty International and the Trades Union Congress, Britain's central labor federation, signed a formal agreement on joint campaigning for workers' rights around the world. Amnesty International USA created a Business and Human Rights division with extensive focus on workers' rights. Oxfam International broadened its development agenda to include labor rights and standards, and its Oxfam America group created a workers' rights program to take up these causes inside the United States.

A Strange Case is just the latest in a decade-long series of HRW reports on workers' rights in the United States. Earlier reports addressed child labor in American agriculture, abuses against immigrant household domestic workers in wealthy U.S. households, conditions in the U.S. meatpacking industry, and labor-rights violations at Wal-Mart.

Trade unions began taking up human-rights themes, too. The AFL-CIO launched a broad-based "Voice@Work" project characterized as a "campaign to help U.S. workers regain the basic human right to form unions to improve their lives." Teamsters, the Service Employees International Union, the American Federation of State, County and Municipal Employees, and other unions produced human-rights reports on employers they confronted in organizing and bargaining campaigns.

In 2004, the Teamsters issued an analysis of workers' rights violations by Maersk-Sealand, the Denmark-based international shipping company. The company was firing organizing leaders among U.S. truck drivers who carry cargo from docks to inland distribution centers. Classified as independent contractors, port truck drivers have no legal protection for organizing.

The Teamsters distributed thousands of copies of its report to affiliates of the International Transport Federation, the global trade union for workers in the transport sector. Workers held protests and distributed copies of the report at the Danish embassy in Washington, D.C., and at consulates around the United States.

In 2005 and 2006, Teamsters and Danish union allies distributed the report at Maersk's annual shareholders meeting in Copenhagen. They championed a shareholders' resolution, common at American companies' annual meetings but a novelty for Maersk, calling on the company to adopt international labor-rights standards as official company policy. Since then, Maersk has halted its union-busting practices in the U.S., emboldening labor, environmental, and community coalitions in Los Angeles to seek an employment model that will allow port truck drivers to bargain collectively.

American trade unionists are also scoring by turning to international human-rights instruments and mechanisms. In recent years, the ILO has found violations of workers' rights in cases involving immigrant workers, registered nurses, airport security screeners, North Carolina public employees, and university teaching assistants.

BUILDING INTERNATIONAL SOLIDARITY

Advocates understand that issuing human-rights reports and taking rights claims to the ILO or other international human-rights bodies do not yield enforceable results in the American labor-law system. Most international law is "soft law," where decisions are hortatory, not binding.

But casting workers' rights as human rights builds a platform for labor internationalism. Human-rights arguments for workers resonate in much of the rest of the world, especially Europe. Trade union and civil-society organizations there are more familiar with ILO conventions and notions of international standards. They are comfortable with human-rights discourse and readier to respond to human-rights appeals.

In developing countries, too, workers and their advocates have a finely honed sense of human rights and how rights are being abused by multinational corporations. Taking up human-rights themes makes it easier for U.S. unions to reach out, connect, and support workers' struggles around the world using human-rights language and arguments. In short, human-rights discourse and the new alliance of labor and human-rights advocates pry open space for framing workers' organizing and bargaining as a human-rights mission.

Lance Compa, a senior lecturer at Cornell University's School of Industrial and Labor Relations, is the author of the Human Rights Watch report, A Strange Case.