In June 2017, the Special Rapporteur for Freedom of Association and Freedom of Assembly, Maina Kiai released the final report on his 2016 visit to the US. His findings paint a bleak picture of union rights in the US – in ‘stark contrast’ to the ‘positive role’ that the US plays internationally in championing workers’ freedom of association rights. At the end of his mandate as Special Rapporteur, Kiai took the opportunity to comment on the intolerance demonstrated by the new Trump administration in its international relations, noting with concern that the administration has ‘talked of taking a radically different approach on all fronts: its engagement with the United Nations, its promotion of human rights abroad, and even its attitude towards fundamental rights domestically’. The Special Rapporteur points to ‘signals coming from the current administration’ – including xenophobia, disregard for peaceful protest, endorsement of torture – as ‘deeply disturbing’. Stripped of their rights On the National Labour Relations Act (NLRA), Kiai notes that this legal framework ‘legalises practices that severely infringe workers’ rights to associate’. The coverage of the NLRA excludes a large class of workers, such as agricultural and domestic workers, and independent contractors, and ‘employers increasingly categorise workers under these groupings in order to prevent them from organising and to avoid the demands of improved working conditions’, leaving them with ‘no recourse under the NLRA for violation of their rights’. On the right to strike, the report highlights the NLRA’s prohibition on ‘secondary boycotts… preventing workers from soliciting and expressing solidarity for strikes among workers of different employers’ and the fact that ‘employers can permanently replace employees engaged in economic strikes (those strikes concerning higher wages, shorter hours, or better working conditions)’. Such replacement workers are able to ‘vote to decertify a union on strike’. The Special Rapporteur notes that ‘the permanent replacement of striking workers negates the right to strike, stripping employees of their strongest tool for pressing their demands…’. Kiai also highlights issues with the ‘independence and effectiveness’ of the National Labour Relations Board (NLRB); the agency’s funding is ‘authorised by Congress and is thus prone to partisan interests that can manifest as budget cuts or funding with policy riders, preventing the NLRB from pursuing a particular agenda’. Union Busting Under the NLRA, employers have the right to express ‘any views, argument, or opinion … without threat of reprisal or force or promise of benefit’. The Special Rapporteur raises concerns that in practice this section ‘facilitates pervasive employer interference with the ability of employees to form or join unions. For example, employers may hold “captive audience” meetings – which employees are obliged to attend – at which they can aggressively discourage union activity. Employers may also threaten employees’ right to strike by emphasising their ability to permanently replace striking workers and engage companies to help them undermine workers’ organising efforts (a $4 billion dollar ‘union-busting’ industry). Unions have no right to speak during the captive audience meetings, to distribute union literature in the workplace, to conduct meetings in the workplace without management being present, or to hold similar captive-audience meetings’. The Special Rapporteur draws particular attention to the case of the Nissan plant in Canton, Mississippi. The plant is ‘one of only three Nissan plants that are not unionised out of a total of 55 manufacturing facilities worldwide; all of these plants are in the US south’. In December 2016, Industriall and the United Auto Workers (UAW) submitted simultaneous complaints to three OECD National Contact Points (NCP) alleging ‘aggressive policies and practices of union avoidance, harassment and intimidation, at the Canton plant . The complaints to the NCPs in the Netherlands, Japan and France point to the ‘failure of French Renault S.A., Japanese Nissan Motor Co. and Dutch Renault-Nissan BV to undertake due diligence’ with regard to the situation at the plant. Mediation offered by the US NCP was rejected by Nissan North America in 2015. Nissan wrote to the Special Rapporteur in February 2017 to defend its position, and ‘emphasised that it followed domestic law and paid relatively high wages for the region’. In his report, Kiai notes that this response is ‘emblematic of multinational corporations’ duplicity on the issue of workers’ rights. The poor environment...
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Aug 31, 2021
Open Access
Ciaran Cross 