Focus: Worker Organising and Employer Speech

Abstract

16 | International Union Rights | 24/3 FOCUS | FREEDOM OF EXPRESSION Worker Organising and Employer Speech Freedom of association lets workers organise trade unions and bargain collectively without interference by employers and governments. The International Labour Organisation (ILO) has applied this principle consistently by for nearly seven decades since its adoption of Convention 87 in 1948 and Convention 98 in 1949. However, led by US companies, the International Organisation of Employers has invoked ‘free speech’ arguments to justify American management-style interference with workers’ organising efforts in violation of ILO standards1. Under international standards, workers must be able to exercise freedom of association in ‘a climate free of violence, pressure, fear and threats of any kind’2. But the IOE asserts that a 2010 decision by the ILO’s Committee on Freedom of Association (CFA) in a case involving Delta Airlines allows them to campaign aggressively against workers’ organising using high-pressure, fear-mongering tactics that are common in the United States. Employers want to export US-style union-busting campaigns worldwide , with the imprimatur of the ILO. The Delta case The facts of the Delta case centre on an antiunion campaign in which management launched a ‘Shred it!’ crusade, telling flight attendants to tear up their ballots in a union representation election to prevent a majority from voting3. The labour law governing the airline sector in the US required the union to secure a majority vote among employees eligible to vote in the representation election. The union won a large majority among thousands of workers who cast a ballot, but the US labour board certified the ‘no union’ result because a slightly higher number of workers failed to vote. When the CFA declined to second-guess American authorities, the IOE pounced. The Committee merely said it was not in a position to adjudicate complex factual disputes and conflicting evidence. But employers have trumpeted the CFA’s restraint as an ILO blessing of Delta management’s tactics, saying that the Committee’s decision ‘was an endorsement of the approach under US law to determine whether employer speech amounts to interference’4. The IOE’s interpretation is misleading and selfserving . In its analysis, the Committee explained its long-standing position that: ‘While having stressed the importance which it attaches to freedom of expression as a fundamental corollary to freedom of association and the exercise of trade union rights on numerous occasions, the Committee also considers that they must not become competing rights, one aimed at eliminating the other…’5. In further clarification of the decision, the ILO Office stated: ‘The complementary nature of these two freedoms [expression and association] as mutually reinforcing has long been established principle... Care should be taken within the national context…to ensure that the former freedom does not interfere in practice with the free choice of workers in relation to their right to organise’6. Despite this reaffirmation of long-settled principles, the IOE cites the Delta case to argue that US law is now the international norm, allowing employers to openly and aggressively interfere with workers’ organising efforts through sustained, daunting campaigns of psychological pressure and thinly-veiled threats aimed at blocking trade union formation. This is entirely contrary to the ILO’s noninterference standard. The CFA did not endorse the anti-union campaign ‘speech exemplified by Delta’s conduct. Instead, it said: ‘The Committee expresses a general concern at the use of “shred it” buttons [and] considers that the active participation by an employer in a way that interferes in any way with an employee exercising his or her free choice would be a violation of freedom of association and disrespect for workers’ fundamental right to organise…’7. The CFA adopted a report ‘in which the Committee requests to be kept informed of developments’, a formulation signalling on-going concern about the case’s implications for freedom of association. Further underscoring its concern, the CFA concluded its decision with a recommendation formulated as follows: ‘The Committee draws the Government’s attention to the importance of providing for specific and effective protection in relation to the right to organise and the selection of a collective bargaining agent and requests it to review the current application of...