The New Union Avoidance Internationalism: How Anti-Union Firms are Using ILO Jurisprudence to Undermine Freedom of Association

22 | International Union Rights | 26/2 FOCUS | THE ILO AT 100 Anti-union organisations in the US are attempting to reframe the freedom of association debate: interpretting a 2010 decision as ILO endorsement for Americanstyle anti-union campaigns The United States is alone among rich democracies in having an enormous industry of consultants and law firms dedicated to keeping their clients – which include many large multinational corporations -union free. These firms have perfected union avoidance techniques – captive audience meetings, anti-union arguments that bend but don’t break the law, and anti-union videos and websites – thus making it extraordinary difficult for unions to organise in the private sector. In recent years, several firms have expanded their union avoidance activities globally: Littler Mendelson, Jackson Lewis and Seyfarth Shaw and others employ hundreds of attorneys in several continents, provide union avoidance advice to multinational corporations and have annual revenues of hundreds of millions of dollars. These law firms operate globally, and they have taken their anti-union arguments to the debate over international labour standards. Using the ILO Committees In 1977, the US left the ILO over accusations that it was ignoring human rights violations in the Soviet Union and threatening to expel Israel. It rejoined three years later, after the ILO – which was facing financial hardship – criticised labour violations in communist states and defeated a motion condemning Israel. Following the decision to rejoin in February 1980, unions have filed multiple complaints with the CFA over the US government’s failure to adequate protect the right to organise. The US is virtually alone among developed democracies in not having ratified either Convention 87 or Convention 98, and has failed to ratify over 70 ILO Conventions. Unions have argued that the activities of union avoidance firms are by definition incompatible with Conventions 87 and 98. In 1987, the International Association of Machinists filed a complaint stating that US law allows companies to hire anti-union consultants ‘for the sole purpose of denying workers freedom of association’. However, the CFA ruled only on narrow issues and declined to comment on the more significant issue of whether the activities of consultants whose sole purpose is to undermine workers’ right to organise violate 87 and 981. At the time of the IAM complaint to the CFA, these firms were a problem for US unions – now they are a global problem. These law firms operate globally, and they have taken their anti-union arguments to the debate over international labour standards. Union avoidance law firms have grown concerned that unions have successfully used ILO conventions and other international standards to advance campaigns for freedom of association. In the past two decades, unions have participated in a growing number of global organising campaigns. With the assistance of UNI Global Union, ITF and other GUFs, these multi-faceted campaigns have stressed employer violations of ILO conventions and used soft law instruments such as the UN Global Compact and OECD Guidelines for Multinational Corporations. In response, union avoidance law firms have used ILO jurisprudence to bolster their arguments that employers and have a right – and even an obligation – to oppose unions. In the past decade, union avoidance firms have sought to counteract labour’s use of global standards, warning employers that modern organising campaigns frequently include both ‘an international angle and global union federations’. Several union avoidance firms have major practice areas specialising in helping MNCs oppose organising campaigns and counteracting unions’ use of global standards. These firms have helped MNCs ‘formulate and implement strategies to respond to efforts by labour unions… to discredit them through global campaigns’. They warn MNCs against signing international framework agreements with global union federations, despite ‘increasing pressure’ to do so, because IFA’s provide labour organisations with ‘ammunition’ and ‘can deny a business the use of union avoidance measures’2. Rather than simply react defensively to organised labour’s new-found internationalism, union avoidance attorneys have advised employers to take a proactive stance on global standards and use them offensively against GUFs. One union avoidance attorney cautioned that employers must ‘own the debate [on international standards] or the unions will definite it for you’3. US attorneys have proposed using the OECD process...