Rutgers School of Law-Newark

Research Papers Series Paper No: 040

Unions Without Borders: Recent Developments in the Theory, Practice and Law of Transnational Unionism
Alan Hyde And Mona Ressaissi Rutgers School of Law Newark
The Social Science Research Network Electronic Paper Collection: http://ssrn.com/abstract=1323807

Unions Without Borders: Recent Developments in the Theory, Practice and Law of Transnational Unionism
Alan Hyde and Mona Ressaissi * The authors argue that unions facing global capital, or representing migrant workers, or both, should adopt a strategy of (1) insisting, to the extent possible, on representation of workers by national labour movements covering the location where the work is performed; (2) linking those national labour movements through enduring transnational union organizations that coordinate reciprocal exchanges of information, support and resources; and (3) vigorously pursuing alliances with worker support organizations outside the union movement. These conclusions follow a review of recent experiences that, in the authors view, confirm a gametheoretic account which posits that transnational institutions arise in order to solve coordination problems among national institutions. The insistence on the local responds to recent union defeats in cases involving European Union law. In one of those cases the Laval decision Swedish unions that asserted entitlement to wages at the Swedish level for Latvian workers, hired to build a school in Sweden, were held to have interfered with the free movement of capital. North American unions representing migrant farm workers must avoid the analogous claim that such workers were hired in Mexico or Jamaica, and were then posted to Canada or the U.S. While existing formal transnational union organizations and framework agreements have achieved little, they offer the promise of future reciprocity. In contrast, ad hoc campaigns, in which unions in one country ask for the support of unions in another country, have proven unproductive and have, moreover, engendered cultural misunderstandings that undermine the possibility of future support. Although systematic comparison is not possible, many anecdotes suggest that alternative worker support organizations in the developed world are more effective allies for unions in the developing world than are unions in the developed world. 1. INTRODUCTION Everything, the clich has it, is becoming global. Markets, firms, trade flows, migrant workers, mentalities are all global. Transnational worker organizations and coalitions are

* Alan Hyde is Professor and Sidney Reitman Scholar, Rutgers University School of Law. Mona Ressaissi is an associate at Margolin & Neuner, New Jersey, and Adjunct Professor of Political and Governmental Affairs, Centenary College, New Jersey. This article will appear in a revised form in the senior authors forthcoming book, Global Labour Rights: Theory, Evidence, Policy, Chapter 13 (expected 2010). Portions were presented at Tables rondes sur la gouvernance globale du travail, Travail et mondialisation: Vers un nouveau dialogue social et une nouvelle architecture institutionnelle, Universit du Qubec Montral, March 29-30, 2007. The authors acknowledge helpful comments on an earlier draft by Jennifer Gordon, Kevin Kolben, and two

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becoming global too but very slowly, with limited success so far, and in the teeth of hostile legal regulation that increasingly applies a kind of asymmetric globalization, in which the very flow of capital and workers across borders becomes the reason for restricting transnational union organization. This article will develop the following propositions: (1) Transnational union bargaining, and other forms of union regulation of labour markets, offer enormous potential, not only to workers around the world but to employers and states, in alleviating recurring labour problems in the global economy. (2) Like other successful institutions of transnational regulation, transnational union bargaining and regulation are successful when they overcome mistrust that precludes cooperative solutions. (3) As a means of overcoming collective action problems and achieving stable transnational regulation, transnational institutions are far superior to ad hoc campaigns that in practice often exacerbate low trust. (4) However, where an ad hoc campaign of support is required, transnational alliances with nonunion groups such as non-governmental labour rights organizations, ethnic and religious groups, and womens organizations, are superior to alliances with other unions alone. (5) Legal uncertainty about transnational union activity is not the major impediment to its growth. However, such uncertainty should be eliminated. Transnational union activity should be legally protected under domestic and international labour law, as is domestic union activity. These conclusions are tentative and offered in the spirit of launching an academic debate. Transnational worker organization is marginal as a subject of academic study. This is not because there are no such organizations, for there are many. The entire field is like a giant pot-au-feu, sitting at a very slow simmer on the back of the stove. Occasionally someone lifts up the lid to see whether the stew is done cooking and, while it always turns out that it is nowhere near ready, something unexpected has bubbled to the surface each time. The field lacks any theories or testable generalizations. For industrial relations scholars, the characteristic form of inquiry is the anonymous reviewers, as well as the research assistance of Miles Crowder, J.D. (expected 2010).

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case study. Moreover, case studies are biased: they are normally written to celebrate success. We know little that is systematic about when transnational union structures arise, what forms they take, and what (if anything) they accomplish. Study of transnational union activity shares these traits with study of global labour rights generally, where the characteristic genre is also the case study celebrating a particular success, and where there are few theories. Practically no law review literature has been published on the legal issues raised by transnational union activity. We will examine a few of the recent developments in transnational union action that seem to us of greatest interest and importance: the emergence of the first genuine global union; the unanticipated vigour of European Works Councils, particularly in the automobile industry; recent campaigns in which unions and activists cooperated across borders; and framework agreements. But of course what one would like from industrial relations theory is a comprehensive picture a complete taxonomy of structures of transnational unionism, when transnational structures and actions arise, and what they achieve. Accomplishment of this goal is very far away. 1 If industrial relations scholars are far from drawing a comprehensive picture of transnational unionism, legal scholarship is still farther away. A typical list of transnational norms of labour law might include the standards promulgated by the International Labour Organization, domestic norms given extraterritorial effect, norms in trade and other transnational

H. Ramsay, In Search of International Union Theory, in Globalization and Patterns of Labour Resistance, J. Waddington, ed. (London: Mansell, 1999) 192. This volume contains case studies, mostly at the factory level. Three additional valuable anthologies of case studies are K. Bronfenbrenner, ed., Global Unions: Challenging Transnational Capital through Cross-Border Campaigns (Ithaca: ILR Press, 2007); M.E. Gordon & L. Turner, eds., Transnational Cooperation among Labour Unions (Ithaca: ILR Press, 2000); and B. Nissen, ed., Unions in a Globalized Environment: Changing Borders, Organizational Boundaries, and Social Roles (Armonk, N.Y.: M.E. Sharpe, 2002). Not only is there little scholarship, but the existing scholarship is boosterist, not critical. This article is the first academic analysis (of which we are aware) of failed campaigns for transnational union support and of a framework agreement

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agreements, human rights norms, and voluntary corporate codes. 2 Missing from this list are those norms either negotiated with or imposed by transnational union coalitions. 3 Moreover, none of the norms on the standard list specifically protects transnational union activity, which largely exists outside legal structures. The ILO protects freedom of association generally, but has no specific protection for transnational activity. 4 European unions have no formal role in the European Union (EU) or in the works councils it creates. Nor does EU law specifically protect transnational union activity; in fact, it restricts it. 5 Unions operating in Canada, Mexico, and the

between the clothing retailer H&M and the global union federation UNI. 2 Hyde, supra, note *. See also W.B. Gould IV, Labour Law for a Global Economy: The Uneasy Case for International Labour Standards (2001), 80 Neb. L. Rev. 715; K. Kolben, Integrative Linkage: Combining Public and Private Regulatory Approaches in the Design of Trade and Labour Regimes (2007), 48 Harv. Intl L.J. 203; B.A. Langille, Eight Ways to Think about International Labour Standards (1997), 31 J. World Trade 27; V.A. Leary, Form Follows Function or Does It? Formulations of International Labour Standards: Treaties, Codes, Soft Law, Trade Agreements, in International Labor Standards: Globalization, Trade, and Public Policy, R.J. Flanagan & W.B. Gould IV, eds. (Stanford: Stanford Law and Politics, 2003); P. Macklem, Labour Law Beyond Borders (2002), 5 J. Intl Econ. L. 605; K. Van Wezel Stone, Labour and the Global Economy: Four Approaches to Transnational Labour Regulation (1995), 16 Mich. J. Intl L. 987; C.W. Summers, The Battle in Seattle: Free Trade, Labour Rights, and Social Values (2002), 22 U. Pa. J. Intl Econ. L. 61; D.M. Trubek & L. Compa, Trade Law, Labour, and Global Inequality, in Law and Class in America, P.D. Carrington & T. Jones, eds. (New York: New York University Press, 2006) 217. Each surveys the field; none refers to unions as a source of standards or regulation. 3 A recent casebook on transnational labour regulation breaks the pattern to include a chapter on unions as a source of regulation: J. Atleson et al., International Labor Law (St. Paul: Thomson/West, 2008), at pp. 669-736. 4 B. Hepple, Labour Laws and Global Trade (Oxford: Hart, 2005), at p. 189 (equivocal and contested). 5 P. Germanotta & T. Novitz, Globalisation and the Right to Strike: The Case for EuropeanLevel Protection of Secondary Action (2002), 18 Intl J. Comp. Lab. L. & Indus. Rel. 67; D. Ashiagbor, Globalization, Collective Labour Rights and the European Social Model, Third International Conference, Labour Rights in the Era of Globalization, Human Rights Program, Ramat Gan Law School, January 4, 2008. The European Court of Justice has recently decided two cases, discussed below, that restrict labour unions transnational activity, Laval un Partneri Ltd. v. Svenska Byggnadsarbetareforbundet, [2008] All E.R. (EC) 166, [2008] I.R.L.R. 160, 2007 ECJ CELEX LEXIS 937 [Laval]; and Intl Transport Workers Federation and Finnish Seamens Union v. Viking Line ABP, [2008] All E.R. (EC) 127, [2008] I.R.L.R. 143, 2007 ECJ

United States have no distinct role in the North American Agreement on Labour Cooperation, nor does that agreement contemplate or protect alliances among those unions. Recent trade agreements entered into by the United States require parties to observe core international labour standards but do not specifically address joint action by union movements in the party states. 6 This is a curious omission, since the potential contribution of transnational organization is obvious, in linking workers facing a transnational employer, representing migrant workers or, frequently, both. Jennifer Gordon argues, in an important recent article, that an immigrant worker affiliated with a transnational labour organization is unlikely to undercut domestic wage rates. She urges expansion of such transnational organizations. Her examples, however, are recent agreements linking U.S. grower associations with U.S. organizations, such as the Farm Labour Organizing Committee (FLOC) or the United Farm Workers (UFW). These agreements cover migrant farm workers. 7 We find Gordons basic insight, that a unionized migrant presents less

CELEX LEXIS 1039 [Viking]. 6 The Bipartisan Trade Promotion Authority Act of 2002 sets out trade negotiating objectives for the United States, as part of setting up a system limiting Congress ability to revise trade agreements, once negotiated. Among these objectives are to promote respect for worker rights and the rights of children consistent with the core labour standards of the ILO (as defined in s. 2113(6), 19 USC 3813(6) and an understanding of the relationship between trade and worker rights, 2102(a)(6), 19 USC 3802(a)(6)); to seek provisions in trade agreements under which parties to those agreements strive to ensure that they do not weaken or reduce the protections afforded in domestic environmental and labour laws as an encouragement for trade, 2102(a)(7), 19 USC 3802(a)(7); to promote universal ratification and full compliance with ILO Convention No. 182 Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, 2102(a)(9), 19 USC 3802(a)(9); and to ensure that a party to a trade agreement with the United States does not fail to effectively enforce its environmental or labour laws, through a sustained or recurring course of action or inaction, 2102(b)(11)(A), 19 USC 3802(b)(11)(A). While the legal status of these objectives is not clear, U.S. trade negotiators have chosen to treat them as binding and have insisted on the inclusion of labour rights provisions in all subsequent trade agreements: see K.A. Elliott & R.B. Freeman, Can Labor Standards Improve under Globalization? (Washington, D.C.: Institute for International Economics, 2003), at pp. 87-89. 7 J. Gordon, Transnational Labour Citizenship (2007), 80 S. Cal. L. Rev. 503.

concern to the immigration system than an unrepresented migrant, to be powerful and convincing. However, before incorporating this insight into immigration law, one might want to know the following: whether it would require new organizations of workers or employers, or the development of existing organizations; whether FLOC or UFW should become more transnational and, if not, how to guarantee effective representation of migrant farm workers by U.S. unions; how, if at all, immigration law would need to be changed to accommodate this new model; and whether a model in which immigration status depends on union representation would be limited to agricultural labour or whether it would have implications for other sectors. The answers to these questions are not obvious, but must be informed by study of the actual experience of transnational organization of migrant workers, both those employed in agriculture and elsewhere. We will return to them in Part 4 below. In view of the potential of transnational worker organization, it is not easy to explain why it plays such a limited role in the emerging global system of labour rights. As mentioned, we do not have any good theories that explain when transnational union activity arises or when it succeeds. No scholarship takes a comprehensive view of transnational worker organization, and no testable theories have been propounded concerning its origins, successes, or failures. Successes often seem attributable more to the efforts of individual trade unionists who try to make it work than to any structural or economic factors. 8 Certainly there are cultural misunderstandings that weaken the effectiveness of transnational organization, some legal impediments in the domestic labour law of secondary boycotts, and some recent decisions of the European Court of Justice that go out of their way to discourage transnational union solidarity.

I. Greer & M. Hauptmeier, Co-managers and political entrepreneurs: Labour transnationalism at four multinational auto companies (2008), 46 Brit. J. Indus. Rel. 76.

This article will try to move the discussion of transnational unionism to a higher theoretical plane. Institutions and norms of transnational labour law normally arise to solve collective action problems. The senior author of this article has recently been developing this idea into a formal game among states. 9 Successful norms of transnational labour law rarely interfere with any countrys comparative advantage in trade (such as low wages generally). Rather, they arise as solutions to games (known in game theory literature as Stag Hunts), where a cooperative solution exists that is optimal for all countries but that will not be reached if countries rationally fear that others will defect to pursue short-term advantage. Examples of such norms include bans on child labour or the use of certain industrial toxins, work practices that are not in any countrys long-term interest but that can be a source of short-term advantage if ones trading rivals are working to eradicate them. One important implication of this approach is that failures of transnational regulation normally reflect low trust that ones rivals will adhere to a cooperative solution. This article will show that a similar though not identical process is at work when the cooperation is among national union movements and their allies, rather than among national governments. Norms and institutions arise to solve collective action problems. Building trust requires enduring institutions capable of reciprocal commitment, as opposed to ad hoc alliances. We will illustrate this dynamic by reviewing the current organizational forms of transnational worker organization, of which there seem to us to be two successful examples, neither of which is well-known in North America. One is the worlds first genuinely global

A. Hyde, A game theory account and defence of transnational labour standards a preliminary look at the problem, in Globalization and the Future of Labour Law, J.D.R. Craig & S.M. Lynk, eds. (Cambridge: Cambridge University Press, 2006) 143; A. Hyde, The ILO in the Stag Hunt for Labour Standards, forthcoming in Law and Ethics of Human Rights; Hyde,

union, the International Transport Workers Federation (ITF), which represents merchant seamen on flag-of-convenience ships. The other is the European Works Councils, which are evolving, at least in the automobile industry, into multinational works councils. Better known in North America, but less successful to date, are ad hoc campaigns of union solidarity. We will look at two attempts by unions in the United States to build international solidarity, by the United Steelworkers against Bridgestone/Firestone and by the garment workers union, UNITE HERE, against the Swedish clothing retailer H&M. Our accounts represent the first attempt to examine campaigns of this type both from U.S. and nonU.S. perspectives. At best, such campaigns have resulted in framework agreements, and we will look at what those agreements have achieved to date. Legal impediments to transnational organization will be briefly discussed, and we will argue that lifting such impediments should be a higher priority for the International Labour Organization and the European Union. Finally, we will look at a real-world situation that is outracing Professor Jennifer Gordons discussion of transnational labour citizenship 10 the problem of how to organize migrant farm workers from Mexico and Jamaica who work in Canada under formal agreement among the relevant governments. This question is now under intense discussion in Canadian legal and labour institutions, understandably within a Canadian legal framework. We will ask whether there are any lessons to be drawn from other areas of law and practice concerning migrant workers that might illuminate these debates.

2.

FORMS AND STRUCTURES OF TRANSNATIONAL WORKER ORGANIZATION: FORMAL STRUCTURES, AD HOC CAMPAIGNS,

supra, note *. 10 Gordon, supra, note 7.

FRAMEWORK AGREEMENTS, AND NON-UNION ACTORS There is no shortage of formal and informal organizations that purport to facilitate transnational union cooperation. Migrant farm workers in Canada, for example, have many places to turn to for help, not all of equal effectiveness. Our not-yet-existent theory of transnational unionism will, when synthesized, specify the appropriate role of each organization. Pending such a theory, for ease of exposition, we will discuss: (a) formal institutions that link national union federations, national unions or works councils, including Global Union Federations and European Works Councils; (b) ad hoc campaigns; (c) Global Framework Agreements between multinational corporations and one or more of the institutions discussed in (a); and (d) networks involving actors that are not unions, such as activists and religious, womens and indigenous groups. The basic tension running through this discussion is between groups that are established and stable but do very little (for example, global federations of national federations or national unions), and groups that are ephemeral but capture more of the excitement of a social movement (for example, campaigns against sweatshops). Few descriptions are available of what one might consider the middle ground, a group that accomplishes something quietly. Some have thus generalized in favour of movement over organization. 11 This article will complicate that generalization in two directions. First, there are preliminary indications that, while actual achievements of European Works Councils are small, they may be able to combine the best of

11

[M]ost of the successful fights against global corporations the international strategic campaigns, anti-sweatshop movement, and fights against privatization rarely involve [the ICFTU, Global Union Federations, or groups representing workers at the ILO]. Instead, these remarkable efforts are primarily waged through loose and mostly informal networks of national unions, social justice groups, and research-oriented NGOs. A. Banks, Book Review, Lab. Stud.

both worlds both the stable and the active. Second, based on experience to date, we are sceptical that loose ad hoc campaigns will be able to achieve much without some more enduring organization, as we shall see after reviewing two such campaigns in Part 2(b).

(a) (i)

Formal Structures Institutions Linking National Federations National union federations affiliate with the new International Trade Union

Confederation (ITUC). 12 Founded in November 2006, the ITUC unites the former Cold War rivals, the International Conference of Free Trade Unions (ICFTU) and the World Congress of Labour (WCL). 13 This longtime division into two global union confederations is commonly thought to have weakened labour, though we have never been certain how. That proposition will now be tested. So far there is no indication that the ITUC is set up to do much. It will constitute the worker representative at the International Labour Organization (ILO) and the Organisation for Economic Co-operation and Development (OECD). There is, amazingly, no systematic scholarship on the activities of the predecessor ICFTU or WCL, and obviously none yet on the ITUC. Probably they mostly talk.

(ii)

Institutions Linking National Unions or Works Councils A more interesting strategic choice faces a national union which represents diverse

J. (Winter 2003), at pp. 105-106. 12 International Trade Union Confederation home page, <http://www.ituc-csi.org>. 13 The ICFTU in turn had three regional sub-bodies, which are currently merging with their WCL counterparts: APRO for Asia; AFRO for Africa, and ORIT for the Americas. In Europe, the European Trade Union Conference (ETUC) links union federations in EU countries. The ITUC is creating a Pan-European Regional Council that will link the ETUC with union confederations in

manufacturing and service workers, such as (in North America) the Canadian Automobile Workers, the United Steelworkers, or UNITE HERE. Such unions are likely to be affiliated with the following: (a) a Global Union Federation (GUF) an enduring organization that links, for example, the worlds automobile unions; (b) world or regional councils directed at particular companies, like Ford or DaimlerChrysler; and (c) ad hoc campaigns for support in organizing or pressuring companies. It is not easy to work out descriptively when national unions invoke one of these structures rather than another, or, strategically, what are the relative achievements of each. A fourth emerging alternative is to merge with a union in another country. The United Steelworkers have recently announced plans to merge with a union in the United Kingdom. 14 It is far too early to analyze the significance of this plan; other mergers involving the Steelworkers have been announced but were later aborted. 15

(A)

GLOBAL UNION FEDERATIONS (GUFS) Formerly known as International Trade Union Secretariats, these structures link national

unions in the same industry. 16 There are ten GUFs. 17 All of them have been around for years and

Europe that are outside the EU. 14 B. Toland, USW, Brits Near Creation of Super Union, Pittsburgh Post-Gazette, May 28, 2008, p. A-1. The British union, Unite, was itself formed in 2007 through the merger of the Transport and General Workers Union and Amicus. 15 An announced merger of the Steelworkers, United Automobile Workers, and International Association of Machinists never took place. See S. Greenhouse, Three Unions Say Conflicts Will Delay Merger, The New York Times, June 25, 1999, p. A21. However, the Steelworkers have successfully absorbed the former Paper Workers and Rubber Workers; the latter will be discussed infra, in Part 2(b)(i). 16 The new acronym means that they are known in Latin America as los GUFis: seminar presentation at Rutgers University School of Law by Ben Hensler, former international campaigns coordinator, AFL-CIO, February 23, 2005. 17 Education International (EI); International Federation of Building and Wood Workers (IFBWW); International Federation of Chemical, Energy and General Workers Unions (ICEM);

are known primarily by self-description, as there is little scholarly writing on their activities. 18 They do not have much of an activist tradition. The most interesting GUF has, however, evolved into a functioning transnational trade union. The International Transport Workers Federation (ITF) has displaced national trade unions as the decisive wage negotiator for seafarers working on flag-of-convenience ships. 19 The ITF claims to include about a quarter of the sailors on such ships, or over 90,000. 20 After decades of resistance, employers have now formed a committee that negotiates standard international wages with the ITF, which manages to maintain a precarious internal harmony that is constantly threatened by the willingness of crews from the Philippines, India, and other countries to work for less than ITF scale. Negotiated international standards are enforced by ITF inspectors in each port. The ITF is the unique example to date of a functioning international trade union. Its success depends on several factors. The ease with which flag-of-convenience ships can reregister and free themselves of regulation simultaneously gives the union incentives to develop a truly international organization, and gives employers a means of evading it. The union has taken

Union Network International (UNI); International Federation of Journalists (IFJ); International Metalworkers Federation (IMF); International Textile, Garment, and Leather Workers Federation (ITGLWF); International Transport Workers Federation (ITF); International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco, and Allied Workers Associations (IUF); and Public Service International (PSI): see Global Labour Institute, Global Union Federations, <http://www.global-labour.org/global_union_federations_-_gufs.htm>. 18 C. Levinson, International Trade Unionism (London: Allen & Unwin, 1972). 19 M. Anner et al., The Industrial Determinants of Transnational Solidarity: Global Interunion Politics in Three Sectors (2006), 12 Eur. J. Indus. Rel. 7, at p. 16. See also N. Lillie, A Global Union for Global Workers: Collective Bargaining and Regulatory Politics in Maritime Shipping (New York: Routledge, 2006); N. Lillie, Global Collective Bargaining on Flag of Convenience Shipping (2004), 42 Brit. J. Indus. Rel. 47. 20 ITF, ITF Flags of Convenience Campaign, http://www.itfglobal.org/flagsconvenience/index.cfm>.

advantage of the following phenomena: the general vulnerability of transportation services to delays (you cant stockpile trucking or shipping); the political regulation of shipping, which permits pressure to be exerted through port and maritime commissions; the use of solidaristic action by dockworkers; and a very long time horizon (the ITFs campaign against flag-ofconvenience shipping originated in 1948 and slowly evolved to its present level of organization). 21 Other GUFs range downward in effectiveness. In automobiles, the International Metalworkers Federation is less effective than organizations focused on particular employers, discussed in the next section. The International Textile Garment and Leather Workers Federation has been frustrated by the ease with which employers can close or shift production from unionized facilities. This has led it to refocus its efforts on retailers as opposed to manufacturers, as we will discuss in Part 2(b)(ii) with regard to the retailer H&M. 22 In that case, however, as we will see, organizational energy came from a U.S. domestic union, while the GUF the Union Network International (UNI) played a negative role, undercutting an organizing campaign in the U.S.

(B)

WORLD OR REGIONAL COUNCILS DIRECTED AT PARTICULAR AUTOMOBILE MANUFACTURERS Company-based European Works Councils (EWCs) have, surprisingly, proven more

effective than the GUF at all automobile manufacturers, although there is variation among firms:

21

Anner et al., supra, note 19, at p. 18. For a more sceptical account of the ITFs achievements, see C.B. Donn, Sailing Beyond the Reach of Workplace Regulations: Worker Exploitation by MNCs on the High Seas, in Multinational Companies and Global Human Resource Strategies, W.N. Cooke, ed. (Westport, Conn.: Quorum Books, 2003) 293. 22 Anner et al., supra, note 19.

At DaimlerChrysler and VW, labour transnationalism is a matter of providing a minimal level of information and collective rights for foreign colleagues . . . . At . . . Ford and GM, we see European-level coordination, and to some extent, bargaining. 23 EWCs originated as a result of a 1994 EU directive requiring their establishment in companies that operated in more than one EU country. 24 Because they are required by law, these European groups have become much more numerous than global bodies. 25 However, their efficacy in coordinating action across borders did not emerge at once. British attitudes were negative after BMWs sale of Rover in 2000, with the eventual closure of one plant. The German works council knew all of the plans because of German co-determination and BMW practices, but kept British worker representatives in the dark. 26 More recently, however, EWCs have become more effective. Fords works council has negotiated three transnational collective agreements. Two of them cover spinoffs of Ford operations: parts manufacture (Visteon), and a joint venture producing transmissions (GFT). These agreements secured existing wages and labour standards for Ford workers transferred to the new companies. A third transnational agreement covered planning for cost savings. At

23 24

Greer & Hauptmeier, supra, note 8, at p. 3. Council Directive 94/45, [1994] OJ L 254/64. See generally M. Carley & M. Hall, The Implementation of the European Works Councils Directive (2000), 29 Indus. L.J. 103. 25 S. Rb, World Works Councils and other forms of global employee representation, in Transnational Undertakings: A Survey (Dusseldorf: Hans Bckler Stiftung, 2002), found only 18 firms with global agreements and 20 cases of world works councils or networks (at least on paper), but 600 examples of EWCs. 26 C. Villiers, The Rover Case (1): The Sale of Rover Cars by BMW The Role of the Works Council (2000), 29 Indus. L.J. 386; J. Armour & S. Deakin, The Rover Case (2) Bargaining in the Shadow of TUPE (2000), 29 Indus. L.J. 395; A. Tuckman & M. Whittall, As a phoenix arisen? Union organisation, Rover cars and the British motor industry, in Union Recognition: Organising and Bargaining Outcomes, G. Gall, ed. (London: Routledge, 2006) 83; C. Villiers, Workers and Transnational Corporate Structures: Some Lessons from the BMW-Rover Case (2001), 3 Intl & Comp. Corp. L.J. 271.

General Motors, the EWC has negotiated similar European agreements; it has also organized Days of Solidarity, which are coordinated work stoppages to protest plant closings. 27 The most recent of these stoppages, in 2006, saw 40,000 workers, from all the European unions, protest the closing of a plant in Azambuja, Portugal including workers in Zaragosa, Spain, who stood to pick up the production work! However, GM closed the plant anyway. 28 So far, North American unions of automobile workers are mostly outside the EWC process. They do participate in World Works Councils for each company. World Councils negotiate codes of social responsibility with the large automobile manufacturers and then hear complaints under them, most or all of which allege failure to recognize a union. It is not easy to see why the World Councils are not used for the Days of Solidarity or for coordinating North American and Asian collective agreements with those of the European Works Councils. Interviews with unionists on these questions would help explain their sense of strategy. Presumably it would not be difficult to arrange some kind of permanent observer status for non-European unions at the EWCs. In general, the automobile EWCs have been eager to involve their North American allies. When Daimler-Benz bought Chrysler in 1998, the German union IG Metall yielded a seat on the supervisory board to a representative of the U.S.-based United Automobile Workers (UAW) the first time that a non-German unionist joined a German companys supervisory board. IG Metall has been mightily upset that the Americans have used the position merely to gather information and voice concerns on a case-by-case basis, rather than use it as a power resource, as IG Metall does. 29 Situational, rather than strategic, use

27

V. Pulignano, Going National or European? Local Trade Union Politics within Transnational Business Contexts in Europe, in Global Unions, supra, note 1, p. 137. 28 Greer & Hauptmeier, supra, note 8, at pp. 15-23. 29 Ibid., at p. 12.

of transnational institutions is a hallmark of U.S. union practice, as we shall again have occasion to observe. The only UAW participation in EWC labour transnationalism consisted in its support of the Ford EWC in the negotiation of the Visteon agreement, maintaining Ford labour standards as that parts subsidiary was spun off. Wilfried Kuckelkorn, head of the Ford EWC from 1984 to 2001 (and a member of the European Parliament from 1994 to 2004) cultivated the relationship with the UAW. After six workers died in a 1999 explosion at Fords River Rouge plant near Detroit, Kuckelkorn organized a collection by German workers for the families of the victims, which he personally presented to the UAW. Later, the UAWs top Ford official participated in the European Visteon negotiations. 30 We are informed that he had to obtain his first passport for the occasion, but have been unable to confirm the story.

(b)

Ad Hoc Campaigns in which Unions Support Unions In general, U.S. unions think about transnationalism in terms of campaigns, not

structures. As noted, U.S. unions do not participate much in GUFs or EWCs. In contrast, there has been more participation in ad hoc campaigns, but in a peculiarly asymmetric way. American unionists have been interested in obtaining support for their struggles from foreign unions, but have offered precious little support in return. We think that the preference for ad hoc campaigns over permanent structures, and the preference for seeking rather than lending support, both stem from the same roots. Most important, we believe, is U.S. union tradition and culture, i.e. the tradition of conceptualizing

30

Ibid., at p. 16.

unions as national, not global, institutions; 31 of union leaders who lack passports, whether in reality or only mythically; and of opposition to imports and immigration a tradition which has only recently changed. Both preferences also reflect aspects of labour law that we will explore momentarily. Moreover, some transnational ad hoc campaigns have been occasions for cultural misunderstanding and missed opportunity. We will now offer two accounts of ad hoc campaigns in which U.S. unions sought support from foreign unions. While there have been other accounts of such campaigns, 32 the following are, so far as we know, the only published analyses that consider both the U.S. perspective and the perspective of the non-U.S. unions who were asked for support. First we will look at an attempt by the United Steelworkers to get support from Japanese unions for a strike against U.S. operations of the Japanese tire maker Bridgestone/Firestone. Since our account of that campaign draws on a description that appeared in a Japanese publication of quite limited availability, it is worth summarizing here. 33 Second, we will offer a brief original account of attempts by UNITE to gain Swedish support for an organizing campaign at the U.S. distribution center of the Swedish retailer H&M. The junior author of this article both researched and

31

C.M. Vogler, The Nation State: The Neglected Dimension of Class (Aldershot, Hants, U.K.: Gower Publishing, 1985). 32 J. Atleson, The Voyage of the Neptune Jade: The Perils and Promises of Transnational Labour Solidarity (2004), 52 Buff. L. Rev. 85; sources cited supra, note 1. 33 B. Watanabe & S. Yamasaki, On the Possibility of Reforming the Japanese Labour Movement through International Solidarity: A case study of the influences of the BridgestoneFirestone and HERE Local 11 Appeal for Support from Japanese Unions (1999), 5 Bull. of the Ctr. for Transnatl Lab. Stud. 2. Another account of the campaign, exclusively from the perspective of U.S. unionists, is T. Juravich & K. Bronfenbrenner, Out of the Ashes: The Steelworkers Global Campaign at Bridgestone/Firestone, in Multinational Companies and Global Human Resource Strategies, W.N. Cooke, ed. (Westport, Conn.: Quorum Books, 2003) 249.

participated in that campaign. 34

(i)

Bridgestone/Firestone, 1994-1996 The 1994-1996 strike by U.S. employees of the Japanese tire manufacturer Bridgestone

moved from failure to success after a union merger and the adoption of more aggressive tactics by the union. 35 It is one of the signal U.S. union victories of the 1990s. We examine only one of the American unions tactics its efforts to internationalize the conflict. While the attempts at transnational union cooperation are often presented as a success, 36 they were an embarrassing (though instructive) failure. The American unions wanted support but offered little in return. They did not want to listen to criticism. They failed to understand complex Japanese union rivalries. The Rubber Workers, who struck Bridgestone initially, attempted to generate international support, without much apparent success. The Rubber Workers were affiliated with a GUF (the International Federation of Chemical, Energy and General Workers Unions, or ICEM), and they alerted it when the strike started and when replacement workers were brought in. ICEM appealed to its worldwide affiliates to support the strike. In addition, the Rubber Workers had direct contact with Gomu-Roren, the Japanese Federation of Rubber Workers Unions (mostly enterprise unions in the Japanese style). Gomu-Roren set up a Japanese committee to support the strike. That committee included representatives from the following:

34

A fuller version of this account, with references to Swedish-language sources, is available from the author. 35 Juravich & Bronfenbrenner, supra, note 33; S.D. Harris, Coases Paradox and the Inefficiency of Permanent Strike Replacements (2002), 80 Wash. U.L.Q. 1185, at pp. 1245-1248, 12621267. 36 See, e.g., T. Juravich, Beating Global Capital: A Framework and Method for Union Strategic

Rengo, by far the largest of the three Japanese trade union confederations; ICEM; IMF; the Trade Union Council for Multinational Corporations; and Bridgestone Japans enterprise union. 37 Rengo in particular anticipated a request for support, and was actively studying its options. 38 The summer 1995 merger of the Rubber Workers with the Steelworkers, and the involvement of the AFL-CIO Industrial Union Department (IUD), undoubtedly turned a defeated strike into a victory. Still, it was something of a setback for international union cooperation. In July 1995, an IUD staffer visited Japan, representing both the IUD and the Steelworkers, to attempt to generate protest actions against Bridgestone. However, she did not meet with representatives from Rengo, which learned about the visit only from the media. Instead she met only with Zenrokyo, a much smaller union federation. 39 Steelworkers representatives explained this by saying that Rengo . . . did not want to get involved. 40 Watanabe and Yamasaki disagree strongly with this rationalization, pointing to numerous meetings and correspondence in which Rengo attempted to learn more about the strike and to coordinate

Corporate Research and Campaigns, in Global Unions, supra, note 1, p. 24. 37 Watanabe & Yamasaki, supra, note 33, at p. 4. 38 Ibid., at p. 6. 39 The three Japanese union federations are, in descending order of size, Rengo, Zenronen, and Zenrokyo: Number of affiliated workers 1997 2003 Rengo 7.6 million 6.9 million Zenronen 0.8 million 1.2 million Zenrokyo 0.3 million 0.1 million

Paul Stewart, Marginal movements and minority struggles: the case of the Japanese minority social and labour movements (2006), 54 Sociology Rev. 753, at p. 771, note 9. For more on the Japanese federations, see M.E. Rebick, The Japanese Employment System: Adapting to a New Economic Environment (Oxford: Oxford University Press, 2005), at pp. 77-79; Y. Genda & M.E. Rebick, Japanese Labour in the 1990s: Stability and Stagnation, Oxford Rev. Econ. Poly (November 2, 2000) 85, at p. 95; International Labour Organization, National Labour Law Profile: Japan, <http://www.ilo.org/public/english/dialogue/ifpdial/info/national/jp.htm>.

Japanese responses. Apparently, IUD did not even consult the International Affairs Department of the AFL-CIO before deciding to work only with Zenrokyo. 41 A demonstration in Washington, which took place during the July 1995 visit to Japan, set cooperation back further. On July 18, 1995, four or five hundred strikers and other Steelworkers picketed the Japanese embassy in Washington. Placards reading Enola Gay, one more mission were photographed and appeared in newspapers around Japan. Steelworkers President George Becker personally apologized, and U.S. organizers had to make efforts to stop the anti-Japanese sentiments that their campaign had unleashed. 42 A delegation of striking workers and union officials visited Japan in September 1995, meeting with unions and participating in protest actions. The delegation also visited Hiroshima and the Peace Park there. Two members visited Rengo, but it was in no mood to join protest actions. Rengo tried to persuade the U.S. delegation that Japanese methods, by which was apparently meant peaceful consultation, would be more effective than demonstrations. 43 However, the more radical federations were eager to participate in demonstrations. Rengo was finally won over as international support for the strike grew, particularly after the National Labor Relations Board (NLRB) issued a complaint in November 1995, which meant that the companys actions could be characterized as illegal.

40 41

Juravich & Bronfenbrenner, supra, note 33, at p. 259. Watanabe & Yamasaki, supra, note 33, at pp. 7-10. 42 Ibid., at p. 7; Juravich & Bronfenbrenner, supra, note 33, at pp. 259-60. 43 Watanabe and Yamasaki are critical of Rengo here. We are doubtful of the effectiveness of such rhetoric. We think that this kind of explanation was one of the reasons for the distrust of the Japanese unions. If Rengo goes on talking only of the Japanese style, then such miscommunication may happen again: ibid., at p. 9. We do not disagree, but we would note that miscommunication can go both ways. As we shall see below, Swedish unions who were asked for help in the H&M campaign thought (as Rengo did) that they were being asked for their expertise on the target company; they counselled less confrontational methods; and they were

Nevertheless, it is hard to find much evidence of effective transnational union cooperation in the Bridgestone story. Japanese unions demonstrated some of them, anyway but they do not appear to have raised any concerns about the U.S. situation in their normal interactions with Bridgestone. The largest confederation was clearly insulted, first by being ignored and then by having its advice disregarded. No lasting structures or even personal ties seem to have developed.

(ii)

H&M, 2003 Similar misunderstandings emerged in 2003, when the North American union UNITE 44

sought help from Swedish unions in organizing a distribution center in New Jersey, part of the international clothing retailer H&M (Hennes & Mauritz), which was then just entering the U.S. market. UNITE demanded that H&M agree to recognize it after a majority of warehouse workers had signed authorization cards, rather than await a formal election conducted by the NLRB. 45

ignored. 44 Union of Needletrades, Industrial and Textile Employees, now called UNITE HERE, after merging in 2004 with the Hotel Employees and Restaurant Employees International Union. 45 See J.J. Brudney, Neutrality Agreements and Card-Check Recognition: Prospects for Changing Paradigms (2005), 90 Iowa L. Rev. 819 (noting that less than one-fifth of workers who organized in 1998-2003 did so through an NLRB election); A.E. Eaton & J. Kriesky, Union Organizing under Neutrality and Card-Check Agreements (2001), 55 Indus. & Lab. Rel. Rev. 42, at p. 52 (success rate for card-check agreements unaccompanied by employer neutrality pledge is 62.5 percent, well above the success rate in NLRB elections). Changing Canadian recognition procedures have provided natural experiments that likewise confirm the greater union success rate under card checks as opposed to elections. See, e.g., C. Riddell, Union Certification Success under Voting versus Card-Check Procedures: Evidence from British Columbia, 19781998 (2004), 57 Indus. & Lab. Rel. Rev. 493; S. Slinn, An Empirical Analysis of the Effects of the Change from Card-Check to Mandatory Vote Certification (2004), 11 C.L.E.L.J. 259. UNITE and HERE, before and after their merger, have strongly preferred card-check recognition to NLRB elections; over 80 percent of their new members are organized through card checks. See L. Jordan & B. Bruno, Does the organising means determine the bargaining ends? in Union Recognition: Organising and Bargaining Outcomes, G. Gall, ed. (London: Routledge,

American unions generally, certainly including UNITE, have made a major effort to legitimize card-check recognition. In U.S. practice, however, such agreements, though legal, are voluntary on the employers part. 46 H&Ms initial position was that it would wait for the outcome of an NLRB election, as it was legally entitled to do. 47 UNITE then attempted to obtain Swedish union support for its organizing campaign. 48 One might have thought that this tactic would succeed, for several reasons. Sweden is a highly unionized country, and H&M is a unionized company. Violating unionization rights is uncharacteristic of H&M, and of Swedish employers in general. Moreover, H&Ms treatment of workers in countries where its clothes are made had already been criticized by workers rights NGOs, such as the Clean Clothes Campaign. 49 Handels, the union representing employees in H&M retail stores in Sweden, helped to arrange a two-day meeting between UNITE and H&M CEO Stefan Persson in October 2003. 50

2006) 181, at p. 182. Jordan and Bruno test the conventional wisdom among U.S. union organizers that card-check recognition increases the likelihood of a first contract. They find that while there is a correlation, the fit is not tight. 46 See generally Brudney, ibid. Under the law in effect at the time of the UNITE campaign (and for at least four decades before that), an employers promise to recognize an existing or future card majority barred NLRB proceedings to challenge the union majority for a reasonable time after that union had achieved a card majority: Keller Plastics Eastern, 157 N.L.R.B. 583 (1966). The Bush Board in its final months held that employers are not actually bound by agreements for voluntary recognition, and may immediately solicit employees to abandon the union: Dana Corp., 351 N.L.R.B. No. 28, 182 L.R.R.M. 1457 (2007). This decision, in our opinion, is absurd and is unlikely to be long-lived. 47 Linden Lumber Div., Summer & Co. v. NLRB, 419 U.S. 301 (1974), affirming the NLRB ruling that an employer who commits no other unfair labour practices does not violate its duty to bargain in good faith by refusing card-check recognition and insisting on an NLRB election. 48 This partly reflected H&Ms highly-centralized operations, typical of contemporary clothing retailers, in which its headquarters in Stockholm made all purchases. H&M does not manufacture anything itself. 49 M. Ruyven & H. Molenaar, H&M Profile, November 1999, http://www.cleanclothes.org/companies.henm.htm>. 50 The relevant GUFs were not important, since UNITE traditionally represents manufacturing workers and is affiliated with ITGLWF, unlike Handels. UNITE and Handels had worked together in 2002, when unions all over Europe successfully pressured the French conglomerate

By then, UNITE had picketed the distribution center in New Jersey and had held a demonstration outside the grand opening of the first U.S. H&M store in Chicago. 51 Handels reported to UNITE that top management at H&M was taking UNITEs concerns seriously and would bargain in good faith. 52 HTF, the union representing H&M managers, was also at the meeting and expressed disapproval that a Swedish company would act as H&M had done; uniform company-wide policy was very important to HTF. 53 The meeting mainly discussed unionization procedures, with H&M insisting on democratic elections and UNITE insisting on a card-check procedure. While nothing concrete came out of the meeting, UNITE did not consider it a failure, taking into account the media coverage and the progress UNITE had made in overcoming Swedish cultural misunderstanding. Media interest in the organizing campaign was substantially greater in Sweden than in the United States, and it made H&M take the matter more seriously. For its part, H&M was also able to use the media to focus attention on UNITEs protests and demonstrations, which H&M saw as an impediment to meaningful dialogue. H&Ms senior Swedish managers were quite turned off by UNITEs aggressive style, and Handels also seemed to have some qualms about it. UNITE had to use the media to educate the Swedish public, including some unionists, on how union organizing is done in the U.S.: most Swedes would not understand the significance of a struggle for mere recognition.

Pinault-Printemps-Redoute to accept card-check recognition at its Brylane distribution center in the U.S. See generally, UNITE HERE home page, <http://www.uniteunion.org/research/history/unionisborn.html>. 51 L. Yue, H&M Workers to Protest, Chicago Sun-Times, September 12, 2003, p. 58; Shoppers Find More than Trendy Clothes at H&M, Chicago Tribune, September 13, 2003, p. C1. 52 A. Ask & P. Lille, H&M Anklagas for att Motarbeta Facket i USA, Sveriges Radio (Sweden), <http://www.sr.se>. 53 S. Nylen, H&M i USA vill Stoppa Facket, Aftonbladet (Sweden), October 23, 2003. See ibid.

Despite the reservations of the Swedish unions, UNITE stood fast in its tactics and continued its public demonstrations. Just a few days after meeting with H&Ms CEO, UNITE staged yet another demonstration, this one outside an H&M store in New Yorks Soho district. 54 UNI, the GUF with which both Handels and HTF (but not UNITE) were affiliated, reacted strongly to these continued efforts on UNITEs part. According to Jan Furstenburg, head of UNIs commerce section, UNI could not support further campaigning against H&M (meaning public protests). In light of the newly-started dialogue between H&M and UNITE in Sweden, and UNIs non-aggressive bargaining culture, UNI felt there was no need for more demonstrations, and suggested that such campaigning could be a sign of what they called bad faith. 55 Furstenburg recognized that UNITE may have had some difficulties in the U.S., but he thought that continued demonstrations would not be in UNITEs best interests and would not be supported by UNI policy. 56 To UNI, it was enough that H&M was speaking to UNITE, and was

54 55

O. Lundh, De Rasar mot H&M, Expressen (Sweden), October 25, 2003. This has nothing to do with use of the term bad faith in U.S. labour law, which imposes a duty to bargain in good faith on employers whose employees have chosen union recognition, and on their unions: National Labour Relations Act, ss. 8(a)(5), 8(b)(3), 8(d), 29 U.S.C. ss. 158(a)(5), 158(b)(3), 158(d). This duty never applied to H&M, whose employees have yet to demonstrate majority support for a union in a form that would trigger it. Although s. 8(a)(5) of the statute requires an employer to bargain with the representatives of his employees, the NLRB has long taken the position that this obligation is limited to representatives designated by a majority of employees to be the exclusive representative in the workplace, and does not require an employer to recognize a union selected by a minority of the workforce as the representative of its members only. For a critique of this position, see C.J. Morris, The Blue Eagle at Work: Reclaiming Democratic Rights for the American Workplace (Ithaca: Cornell University Press, 2005). Of course, even when the U.S. duty to bargain in good faith does apply, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining: NLRB v. Insurance Agents Intl Union, 361 U.S. 477, at pp. 494-495 (1960), holding that the Board has no authority to find a unions partial strike activity to constitute bad faith. 56 R. Jakbo, <http://www.handels.se/home/handels2/home.nsf/unidView/A06D4C66 0F2E48C7C1256F18004C73D9> (Sweden) (follow Kamp om H&M-Anstallda hyperlink). See also T. Bergman, H&M Utmannas av fack i USA, Handelsnytt (Sweden), October 29, 2003

following the rules of the American legal game meaning that as long as H&M behaved legally in the U.S., UNI was satisfied. 57 UNIs position differed from that of its affiliate unions (Handels and HTF), which felt that a uniform employee policy should at least be adopted around the world. 58 H&M did maintain a global code of conduct covering its operations and suppliers, adopted in response to the Clean Clothes Campaign criticisms of 1996, so it accepted the principle of uniform standards and rights. However, that code did not appear to include union recognition. 59 As UNITE continued its campaign, marked most significantly by a huge inflatable skunk that it placed in front of the Fifth Avenue H&M store in Manhattan, 60 the next step in the negotiations, in November 2003, was H&Ms proposal for a compromise election process. 61 Under this proposal, an election would be held if the union organized 25 percent of the workforce, rather than the administratively required 30 percent, and union representatives could come onto H&M premises in order to speak to workers about collective agreements. 62 UNITEs

(newspaper of the Handles union). 57 Bergman, supra, note 56. 58 See supra, note 53. 59 UNI also accepted H&Ms characterization of the conflict as one between two competing unions: UNITE, the actual organizing union (not then affiliated with UNI), and UNIs affiliate UFCW, which often represents retail and distribution employees. The UFCW has not attempted to organize the H&M warehouse workers. UNI and H&M believe that the UFCW has a legitimate claim on those workers and insist that this is a dilemma holding up the unionization of H&M workers. UNITE has formally applied to affiliate with UNI, as it anticipates further organizing among retail and distribution employees. 60 Reuters, H&M Says U.S. Union Trouble Not Hampering Sales, December 2, 2003. 61 L. Tulin, Hogljudda Protester mot H&M i New York, Dagens Industri (Sweden), November 25, 2003. 62 P. Nilsson, H&M Nara Ett Avtal i USA, Dagens Nyheter (Sweden), December 9, 2003. The advantage to UNITE of the 25 percent figure was largely theoretical. Unions rarely petition for an election until a majority has signed membership cards, as union support declines over time even when management does not campaign against the union, and it can decline dramatically if management campaigns aggressively. The proposal for union access, however, was more

aggressive campaigning rubbed off on its negotiation tactics; it rejected this proposal, not even considering it worthwhile as a basis for further talks. 63 Most importantly, the proposal still called for an election, and UNITEs main demand was for a card-check procedure, since it felt that the actions of H&M in the U.S. had made a fair election impossible. A second round of negotiations between UNITE and H&M took place on December 8, 2003, with both parties remaining at a stalemate on the issue of an election. In light of the deadlock over card-check recognition, Swedish media began to speculate about European sympathy strikes against H&M, which were indeed discussed between Handels and UNITE. 64 For such strikes to succeed, UNITE would probably have had to call for them in Germany and France as well as in Sweden. 65 While Handels and HTF supported UNITEs demands for card-check recognition, it was unclear whether they would have supported sympathy strikes. HTF vice-president Bengt Ohlsson recognized a duty of international solidarity owed to the American workers, but stated that strikes would only be a final option. 66 H&M then demonstrated that it could take advantage of transnational union structures. In late December 2003, UNI, which had earlier been sceptical of UNITEs demonstrations and demands for card-check recognition, approved a Global Framework Agreement with H&M. 67 This agreement was signed in January 2004 at ILO Headquarters in Geneva, and was witnessed

meaningful, as U.S. labour law normally does not require an employer to permit union officials onto its property, let alone to address employees: Lechmere, Inc. v. NLRB, 502 U.S. 527 (1992) (striking down Boards balancing approach to employee access). 63 M. Akerhielm, Swedens H&M Hits Back at U.S. Union Accusations, Associated Press, December 6, 2003. 64 N. Akerberg & M. Ottosson, Strejk hotar H&M, Dagens Industri (Sweden), December 9, 2003. 65 Ibid. 66 M. Davidsson, H&M i USA i Fackligt Blasvader, Svenska Bladet (Sweden), December 9, 2003.

by two ILO Executive Directors. 68 The agreement established H&Ms corporate policy of complying with ILO core labour standards, and also acknowledged international documents such as the UN Global Compact and the OECD Guidelines for Multinational Enterprises. 69 Both UNI and H&M were to handle compliance monitoring. UNI was thrilled by this agreement, and hailed H&M: The fact that a Nordic retail chain in this way declares itself loyal to fundamental norms and to social dialogue has great significance for the struggle against unjust working conditions all over the world. 70 UNITE put on a brave face. It welcomed the agreement, which it said might expedite its negotiations with H&M. 71 However, as the agreement failed to address card-check recognition, its value to UNITE was far from apparent. UNI, for its part, solidified its support of H&M and was bolstered in its belief that UNITE should stop campaigning and instead meet H&M at the negotiating table. H&M was equally supportive of UNI, believing that UNI speaks their language and that the company would be better equipped for future labour disputes with UNI acting as an advisor. 72 In contrast, H&M continued to characterize UNITE as consistently misconstruing what the company was all about. 73 The UNI agreement soon cracked UNITEs coalition. Handels, surely feeling some pressure from UNI, which was also Handels own international union federation, expressed the hope that the UNITE campaign would end. Handels perceived that agreement could now be

67 68

We will discuss Global Framework Agreements more generally infra, Part 2(c). UNI, H&M and UNI sign groundbreaking agreement, <http://www.union-network.org/u niinfo.nsf/58f61ccf5875fe90c12567bb005642f9/462dced16c3b7c44c1256e1b002f51d0/$FILE/U NI-HM-en.pdf>. 69 Ibid. 70 Ibid. 71 Nilsson, supra, note 62. 72 Ibid.

reached on many issues in the dispute. 74 UNITE and H&M settled later in 2004 on a plan for union recognition, and the union abandoned its public campaign. Apparently UNITE has yet to be recognized by H&M; UNITEs website does not list H&M among unionized distribution centers. 75 In sum, the H&M campaign achieved very little. The warehouse is not organized, no card-check recognition was granted, and no election has been held. True, the Swedish unions and public undoubtedly acquired more understanding of the difficulties U.S. unions face in organizing. Swedes are not accustomed to public displays of controversy before anyone has even sat down at the negotiating table. Indeed, the Swedish news coverage often failed to understand that the U.S. dispute was about union recognition, which is rarely an issue in Sweden, rather than about a collective agreement. However, whatever the increase in understanding or sympathy, it did not extend to effective action. A sceptic who argued that all of the AFL-CIOs international efforts have not assisted a single American worker could well draw that conclusion here. 76 The failure at H&M, however, had many causes, including both American union attitudes and the inefficacy of existing transnational organization. Like the United Steelworkers in the Bridgestone/Firestone campaign, UNITE seemed to expect that the Swedish unions would unquestioningly support its organizing campaign. Those unions, like their Japanese counterparts in Rengo, instead understood their role as being to give strategic advice based on their long experience with H&M. That advice, though not welcome to UNITE, turned out to be accurate.

73 74

Ibid. M. Ottosson, H&M for Stod av Globalt Fack, Dagens Industri (Sweden), December 19, 2003. 75 UNITE HERE, Distribution and Retail Workers, <http://www.unitehere.org/about/dcretail.php>. 76 This position was taken by Christopher Gant in a seminar at Rutgers on transnational labour

H&M had long dealt with unions in Sweden and fairly, the unions insisted but it was unfamiliar with the aggressive public demonstrations staged by the U.S. union and considered them as obstacles to meaningful dialogue. The global union federation, UNI, shared this analysis. Not only did it decline to automatically support UNITE, it did not support UNITE at all. UNI thought that the public demonstrations showed bad faith. Because there was ongoing dialogue between UNITE and H&M in Sweden, and H&M had complied with U.S. labour law, UNI felt free to give H&M whatever public relations advantage it could gain from a Global Framework Agreement in which it promised to comply with very basic standards. To its credit, UNI later persuaded H&M to agree to card-check recognition in future organizational drives. While UNITE has not yet been able to make use of this concession, a different union, RWDSU/UFCW Local 1102, was recognized by H&M in November 2007, on the basis of its card majority, as the representative of employees in New York City retail stores. 77 Finally, the failure of the H&M drive reflects the weakness of the campaign technique. It would be encouraging at this point to counterpose an account of a successful ad hoc transnational campaign linking unions outside of a formal structure such as an EWC. The truth is, however, that it is hard to find a successful recent transnational ad hoc campaign of union support. 78 Although there are obvious problems in proceeding by anecdote, it seems clear that the

standards. 77 See <http://rwdsu.info/en/archives/2007/11/h_m_workers_win.html>. RWDSU is the union that traditionally represents employees at large New York City department stores. Its website expressly credits the UNI agreement in which H&M agreed to card-check recognition procedures. 78 The contributors to Global Unions, supra, note 1, make reference to occasional acts of support, but the examples that receive sustained analysis all involve either formal structures of cooperation such as European Works Councils, or the participation of non-union activist groups

lessons of the Bridgestone and H&M stories are substantially the same, at several levels: the methodological, human relations and game-theoretic levels. Let us start with the methodological. Transnational attempts at solidarity by U.S. unions may look very different when seen by Japanese or Swedish unionists. So far as we know, the Watanabe and Yamasaki article on the Bridgestone dispute, 79 and the account of the H&M dispute prepared by the junior author of this paper and set out above, are the only analyses of U.S. solidaristic campaigns written by unionists outside the U.S. Future research on transnational union activity must consider other than American viewpoints, in languages other than English. From the standpoint of those who are asked for support, the failure of the H&M campaign is unsurprising at a basic human relations level. Neither the Steelworkers nor UNITE comes off as entirely sympathetic. American unions need, at the least, to engage other unions on a continuing consultative basis, listening to their experience and not merely expecting help when and as the Americans need it. Multinational unionism involves mutual understanding, not merely unquestioning support. At a deeper level, both the Bridgestone and H&M stories confirm the game-theoretic explanation of transnational labour regulation. On this view, transnational norms of labour regulation arise to solve collective action problems (called Stag Hunts or assurance games). 80 The collective action problem is no different for labour organizations than for governments. Labour movements everywhere understand that, for them, a Pareto-optimal state is one in which workers can easily affiliate with strong unions that are able to improve worker conditions and ensure their own organizational survival, through some mix of bargaining and legislation. Certainly unions in Japan and Sweden do not reject this particular Stag Hunt. There is no general race to the bottom

of which more infra, Part 2(d) or both. 79 Supra, note 40.

among unions. However, any labour organization must decide how much effort (in terms of resources and staff time) to put into transnational solidarity, and at what cost in terms of service to members, good relations with employers and governments, and so on. A labour movement contemplating such a Stag Hunt may rationally conclude that, Pareto-optimal, all unions will cooperate with each other; but that other unions will surely defect, and that it would therefore be irrational for it to put more than minimal resources into transnational cooperation. Solving such Stag Hunts, in laboratories or in real life, requires effective assurances that other players have the time horizon and the will to pursue long-term cooperation rather than short-term defection. 81 From this perspective, efficient institutions of transnational union cooperation are those which assure unions that the cooperative project is permanent, not transient; strategic, not tactical; and reciprocal, not one-sided. Against this standard, ad hoc campaigns such as those at Bridgestone or H&M fail: they essentially see transnational union cooperation as tactical, temporary, and unlikely to be reciprocated. In contrast, enduring institutions, however dull and uninspiring, may at least in theory build trust, which makes it rational to commit to cooperative solutions. It is true that one such enduring institution, the GUF UNI, did what it could to disrupt international union solidarity in the H&M matter, by negotiating a Framework Agreement with H&M at a moment that was opportunistic for the employer. We now turn to such agreements.

(c)

International Framework Agreements (IFAs)

80 81

These are discussed in the sources cited supra, note 9. A. Chaudhuri, A. Schotter & B. Sopher, Talking Ourselves to Efficiency: Coordination in Inter-Generational Minimum Effort Games with Private, Almost Common, and Common Knowledge of Advice (2009), 119 Econ. J. 91.

International Framework Agreements are the only recent innovative institutional practice of transnational unionism, but they have largely eluded academic analysis. 82 So far as we know, the H&M/UNI agreement described above is the only one that was designed primarily to obtain support and publicity in order to isolate an organizing union. Other IFAs are more promising, but it is still too early to say whether they are a vehicle of effective transnational unionism, or its nemesis. It is helpful to see IFAs as a type of corporate code of conduct rather than as an institution with deep roots in the international labour movement. Although corporate codes are based on earlier models such as the 1937 codes of the International Chamber of Commerce, they were initiated in their modern form by multinational corporations as a response to negative publicity and activist campaigns over the labour and environmental practices of those corporations in the developing world. 83 The first is said to be the code adopted in 1991 by Levi Strauss. 84 Early codes were little more than public relations gestures, vague on standards, weak on monitoring and enforcement, and devoid of input by workers or their organizations. 85 However, to the surprise of many, corporate codes have evolved into a significant component of the overall system of global labour law. During the Clinton administration, the U.S. Department of Labour

82

See Atleson, supra, note 32; O.E. Herrnstadt, Are International Framework Agreements a Path to Corporate Social Responsibility? (2007), 10 U. Pa. J. Bus. & Empl. L. 187; L. Riisgaard, International Framework Agreements: A New Model for Securing Workers Rights? (2005), 44 Indus. Rel. 707; D. Stevis & T. Boswell, International Framework Agreements: Opportunities and Challenges for Global Unionism, in Global Unions, supra, note 1, p. 174. 83 I. Mamic, Implementing Codes of Conduct: How Businesses Manage Social Performance in Global Supply Chains (Sheffield: Greenleaf Publishing, 2004), at p. 36. 84 The Apparel Industry and Codes of Conduct: A Solution to the International Child Labour Problem? (United States Department of Labor, 1996), at p. 8, note 21. 85 See, e.g., H.W. Arthurs, Private Ordering and Workers Rights in the Global Economy: Corporate Codes of Conduct as a Regime of Labour Market Regulation, in Labour Law in an Era of Globalization: Transformative Practices and Possibilities, J. Conaghan, R.M. Fischl & K.

promoted them heavily, and was forced to respond to demands from its union constituents for more meaningful standards and monitoring. 86 Corporate codes are also the only transnational labour standards instruments that have any presence in China, where 30 percent of the worlds labour force works and where labour standards in manufacturing are effectively set. China does not permit independent trade unions, it receives no trade benefits conditioned on labour standards, it is party to no trade agreements in which it has made commitments on labour standards, and it is effectively impervious to informal pressure. However, for complex reasons of its own, China has welcomed the corporate codes of foreign enterprises. This has led to a large literature, not limited to China, on their achievements and their potential. 87 Global union federations (GUFs), offended that corporate codes have been hailed as effective labour commitment instruments, instead offered an alternative that they feel is far more effective: the international framework agreement (IFA). 88 There are several important differences

Klare, eds. (Oxford: Oxford University Press, 2002), at p. 471. 86 United States Department of Labor, supra, note 91. 87 Mamic, supra, note 83; Elliot & Freeman, supra, note 6, at pp. 58-72; J. Esbenshade, Monitoring Sweatshops: Workers, Consumers, and the Global Apparel Industry (Philadelphia: Temple University Press, 2004); R. Jenkins, Corporate Codes of Conduct: Self-Regulation in a Global Economy (Geneva: UNRISD, 2001); O. Boiral, Certification of Corporate Conduct: Issues and Prospects (2003), 142 Intl Lab. Rev. 317, 1-3; L. Compa & T. HinchliffeDarricarrre, Enforcing International Labour Rights through Corporate Codes of Conduct (1995), 33 Colum. J. Transnatl L. 663; P. Macklem & M.J. Trebilcock, New Labour Standards Compliance Strategies: Corporate Codes of Conduct and Social Labeling Programs (Research Report prepared for the Federal Labour Standards Review, Canada, 1996); C. McCrudden, Human Rights Codes for Transnational Corporations: What Can the Sullivan and MacBride Principles Tell Us? (1999), 19 Oxford J. Leg. Stud. 167; S.D. Murphy, Taking Multinational Corporate Codes of Conduct to the Next Level (2005), 43 Colum. J. Transnatl L. 389; D. ORourke, Outsourcing Regulation: Analyzing Nongovernmental Systems of Labour Standards and Monitoring (2002), 31 Poly Stud. J. 1; J.J. Kirton & M.J. Trebilcock, eds., Hard Choices, Soft Law: Voluntary Standards in Global Trade, Environment, and Social Governance (Aldershot, Hants, U.K.: Ashgate, 2004). 88 See e.g, IMF, Codes of Conduct versus IFAs, <http://www.imfmetal.org/main/index.cfm?n=47 &l=2&c=7798>.

between the corporate codes and framework agreements. First, corporate codes are the product of unilateral action on the part of a multinational company, while framework agreements are the product of negotiations between worker representatives, usually GUFs, and corporate management. 89 Second, since corporate codes are unilaterally created and implemented, they may not cover all core labour standards. 90 In contrast, framework agreements, through the input of global unions, recognize all core labour standards. 91 (Beyond the core standards, uniformity breaks down, as various GUFs differ in their attitudes toward IFAs. For instance, the IMF strongly encourages decent wage provisions in their agreements, 92 but UNI does not, instead referring wage issues to national negotiations 93). Third, framework agreements often cover suppliers, whereas corporate codes rarely do. 94 Manufacturing, especially, has become very dispersed, frequently including a multitude of suppliers and subcontractors who have no direct contact or relationship with the principal multinational. 95 Thus, inclusion of suppliers is extremely important in improving conditions for most workers. 96 Fourth, and perhaps most important, is the difference in how corporate codes and IFAs are implemented. Because corporate codes are established unilaterally, their implementation is

89

See IMF, The Power of Framework Agreements, <http://www.imfmetal.org/main/index. cfm?n=47&1=2&c=7786>. 90 Core labour standards consist of freedom of association and the effective recognition of the right to collective bargaining, the elimination of all forms of forced or compulsory labour, the effective abolition of child labour, and the elimination of discrimination in respect of employment and occupation: International Labour Organization (ILO), Declaration on Fundamental Principles and Rights at Work, 1998. 91 See Stevis & Boswell, supra, note 82; Boiral, supra, note 87. 92 See IMF, supra, note 89. 93 See UNI, infra, note 102. 94 See IMF, supra, note 89. 95 See generally J.T. Mentzer, M.B. Myers & T.P. Stank, eds., Handbook of Global Supply Chain Management (Thousand Oaks, Calif.: Sage Publications, 2007); M. Kotabe & M.J. Mol, eds., Global Supply Chain Management (Northampton, Mass.: Edward Elgar Publishing, 2006).

controlled by corporate management itself, and in some cases the codes make no provision at all for monitoring. 97 The most transparent corporate code belongs to Nike, which is perhaps the only multinational to post on its website the identity of all of its many suppliers; yet Nike, with admirable candour, has released a report detailing its difficulties in monitoring their compliance. 98 IFAs, in contrast, make unions a part of the enforcement and monitoring of the standards to which the company has committed. 99 Even if the negotiations occur on a global level, most framework agreements are implemented locally. 100 Workers themselves can bring to the unions attention any changes or developments that seem inconsistent with the agreement, and negotiations or discussions can begin on a national or international level. 101 Of course, the strength of implementation varies. In the case of H&M, the global union (UNI) clearly states that the framework agreements are voluntary, and in practice their enforcement is achieved mainly through negative media attention and international pressure by a global network of affiliates. 102 Furthermore, the cost of implementation should probably be taken into account; external clearinghouses for corporate codes may be far more expensive than cooperation with workerfunded unions. 103 Finally, the process of negotiating a framework agreement creates a strong basis for

96 97

See Boiral, supra, note 87. Ibid. 98 R. Locke, F. Qin & A. Brause, Does Monitoring Improve Labour Standards? Lessons from Nike (2007), 61 Indus. & Lab. Rel. Rev. 3. 99 IMF, supra, note 89. 100 Ibid. 101 Ibid. 102 UNI, Multinational Division, What Are Global Framework Agreements? <http://www.uniglobalunion.org/UNI site/In_Depth/Multinationals/GFAs.html> (suggesting also that UNI attributes a 100 percent increase of union membership in Brazil through these channels). 103 See A. Florini, Business and Global Governance: The Growing Role of Corporate Codes of

dialogue between trade unions and management, whereas a corporate code may not establish any channels of communication at all. 104 Why do some employers sign IFAs? There do not appear to be any interview-based studies, so one must speculate. Stevis and Boswell note that the typical signatory is a northern European company that negotiates with unions domestically. For such an employer, an IFA may facilitate relations with its domestic unions while placing few demands on the employer. 105 The H&M/UNI IFA, which Stevis and Boswell do not discuss, suggests a complementary dynamic in which the employer signs an IFA in the hope of forestalling more militant union activity. Stevis and Boswell count 55 IFAs (as of January 2007). 106 Nearly all, and certainly the most comprehensive among them, hail from companies with continental northern European heritage. In contrast, it appears that only one U.S.-based multinational, Chiquita, is party to an IFA, and it applies only outside the U.S. 107 No British, Canadian, Japanese, or Korean multinational has an IFA. 108 Actual achievements of the IFAs are modest. On paper, at least, the oldest and most comprehensive agreements that we reviewed are the series negotiated between the IUF 109 and the Danone Group, a French-based food company. The first in the series (1988) is said to be the

Conduct, 21 Brookings Rev. (Spring 2003) 4, at p. 7 (certification is expensive). 104 See Stevis & Boswell, supra, note 82. 105 Ibid., at pp. 180-181. 106 Ibid., at p. 174. 107 Of course, as we have seen, U.S. automobile manufacturers General Motors and Ford are party to European, but not international, agreements. Supra, note 30 and accompanying text. Similarly, agreements respecting sailors made by the ITF, supra, note 20, are normally considered collective bargaining agreements, not international framework agreements. 108 Stevis & Boswell, supra, note 82, at p. 179. 109 International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers Associations, IUF/DANONE Agreements: <http://www.iuf.org/cgibin/dbman/db.cgi?db=default&ww=1&uid=default&ID=164&view_records=1&en=1>.

oldest IFA, indeed older than the first modern corporate code (that of Levi Strauss, 1991). Instead of creating one general framework agreement, the IUF/Danone relationship produced several specialized agreements, 110 indicating a genuine and effective dialogue. 111 Other IFAs provide for specific commitments for example, the agreement between ICEM and the Freudengroup guarantees the right to join a union of ones choice, and precludes the company from engaging in weapons production or for specific monitoring arrangements, such as annual meetings. 112 These examples further highlight the weaknesses of the UNI/H&M framework agreement, which does not bind suppliers, contains few specific commitments other than to comply with ILO core labour rights, and is silent on implementation. 113

(d)

Campaigns Linking Unions with Non-Union Organizations It is only for simplicity that we have so far limited ourselves to traditional labour

organizations, mainly trade unions or their confederations. However, workers in the U.S. are increasingly likely to be represented by coalitions in which unions do not participate at all, or do so only in alliance with ethnic or religious or immigrants advocacy organizations, legal services

110

The agreements made by the IUF and Danone include one on economic and social information for staff and their representatives and one on equality at work for men and women (1989), one on skills training (1992), and one on trade union rights (1994). In 1997 they signed another agreement on joint understanding in the event of changes in business activities affecting employment or working conditions. See ibid.; Stevis & Boswell, supra, note 82, at p. 183, describe the last one as being as close to collective bargaining as agreements have gotten. 111 See IUF, supra, note 109. 112 See <http://www.icem.org/in dex.php?id=106&la=EN&doc=1217>; http://www.icem.org/agreements/freudenberg/freuagren.html. The agreement between UNI and the Greek telecommunications company OTE covers wages, working hours, environmental protection, and applies after any change in company operations. UNI, UNI/OTE/OME-OTE Global Agreement; New Global Agreement with OTE: <http://www.uniglobalunion.org/unitelecom.nsf/0/020701_EN_46>. 113 UNI, supra, note 68.

organizations, and government agencies. 114 The same is true of transnational labour advocacy campaigns. Consider the campaign against Kukdong, as reported by Csar A. Rodrguez-Garavito. 115 Kukdong is a Korean-owned Nike contractor located near Puebla, Mexico. 116 In January 2001 its workforce occupied the yard of the factory, seeking recognition of an independent union and redress of other grievances. Management evicted the strikers, fired the strike leaders, and pursued legal remedies against them. Transnational advocacy networks, including but not limited to trade unions, put pressure on Kukdongs customers, including Nike and Reebok, in an effort to force Kukdong to recognize the union and reinstate the strikers. Demonstrations were held at retail stores in the U.S., and attempts were made to get Nike to enforce its code of conduct for suppliers and to invoke independent monitoring, as provided for by that code. Participating groups included the Worker Rights Consortium (a student-created labour rights group), International Labour Rights Fund, Global Exchange, Maquila Solidarity Network, Coalition for Justice in the Maquiladoras, Centro de Apoyo al Trabajador, and unions in the U.S. and Korea. This campaign was almost instantly successful. By March 2001 Kukdong had recognized

114

A. Hyde, Working in Silicon Valley: Economic and Legal Analysis of a High-Velocity Labor Market (New York: M.E. Sharpe, 2003), at pp. 151-182; A. Hyde, New Institutions for Worker Representation in the United States: Theoretical Issues (2006), 50 N.Y.L.S. L. Rev. 385; A. Hyde, Who Speaks for the Working Poor? A Preliminary Look at the Emerging Tetralogy of Representation of Low-Wage Service Workers (2004), 13 Cornell J. L. & Pub. Poly 599; J.G. Pope, Labour-Community Coalitions and Boycotts: The Old Labour Law, the New Unionism, and the Living Constitution (1991), 69 Tex. L. Rev. 889. 115 C.A. Rodrguez-Garavito, Nikes Law: The Anti-Sweatshop Movement, Transnational Corporations, and the Struggle over International Labour Rights in the Americas, in Law and Globalization from Below: Towards a Cosmopolitan Legality, B. de Sousa Santos & C.A. Rodrguez-Garavito, eds. (Cambridge: Cambridge University Press, 2005), at pp. 64-91 (antisweatshop organizations). See also R.J.S. Ross, A Tale of Two Factories: Successful Resistance to Sweatshops and the Limits of Firefighting (2006), 30 Lab. Stud. J. 65. 116 Ibid.

the independent union and reinstated the strikers. Mexican labour authorities, under strong international pressure, officially recognized that union in September 2001, and management and the union soon signed a collective agreement that included a 40 percent wage increase and improved working conditions. Rodrguez-Garavito reports that this is the only independent union in the Mexican apparel industry. 117 A recent volume of case studies 118 uniformly supports the generalization, although none of the contributors draws it in so many words, that workers in developing countries achieve far more with the support of developed-world labour rights NGOs than they do when they seek support from developed-world unions. 119 Experiences like that at Kukdong have led to some windy rhetoric about new popular legality versus official legality, soft law versus hard law, governance versus regulation, and other allegedly new forms of legality. All of this strikes us as at best premature. A more sober research agenda might dig more deeply into the reasons for the success at Kukdong, 120 and might also

117

As of 2008, however, Kukdong is not listed among Nikes Mexican suppliers. See <http://nikeresponsibility.com/pdfs/Nike_CRR_Factory_List_C.pdf>. 118 Global Unions, cited in note 1. 119 Compare A. Sukthankar & K. Kolben, Indian Labour Legislation and Cross-Border Solidarity in Historical Context, in Global Unions, supra, note 1, at pp. 68-77 (comparing two Indian subsidiaries of Unilever: Hindustan Lever does not respond to support for Indian workers by Dutch trade unions, while Lipton may be responding to multi-stakeholder Just Tea initiative); S. Gunawardana, Struggle, Perseverance, and Organization in Sri Lankas Export Processing Zones, in ibid., at pp. 78-98 (successful union organization after support given by international labour rights NGOs and global federation ITGWU; no mention of developed-world unions); H. Frundt, Organizing in the Banana Sector, in ibid., at pp. 99-116 (support by labour rights NGOs; no mention of developed-world unions); and P. Wad, Due Diligence at APM-Maersk: From Malaysian Industrial Dispute to Danish Cross-Border Campaign, in ibid. at pp. 40-56 (trade union achieves recognition rights at Malaysian medical device factory owned in part by Danish conglomerate only because of favourable ruling by Malaysian courts, after 30 years of effort; Danish labour rights NGOs raise money and help to publicize struggle; Danish unions do nothing). The overwhelming conclusion is that Global Unions, supra, note 1, is entitled too narrowly, and that workers in the developing world should normally work with labour rights NGOs rather than developed-world unions. 120 We attribute that success to the uniquely firm commitment of Nike to be seen as a leader on

look at other examples of such campaigns, not all of which have had such happy endings. 121

3.

LEGAL ISSUES IN TRANSNATIONAL UNIONISM One tentative conclusion permitted by the foregoing case studies is that law does not

currently play a major role in shaping the practice of transnational unionism. Transnational union action takes a variety of institutional forms, with a range of results that seem to reflect ad hoc tactical decisions and the underlying balance of power. Some of those institutional forms raise legal issues, and others do so potentially. We limit ourselves to two interesting issues of this sort: the legal status of international framework agreements, and legal restrictions on transborder union solidarity.

worker rights issues; cf. Locke et al., supra, note 98. 121 The analytic literature on transnational non-union labour advocacy is quite limited. See K.A. Elliott & R.B. Freeman, White Hats or Don Quixotes? Human Rights Vigilantes in the Global Economy, in Emerging Labor Market Institutions for the Twenty-First Century, R.B. Freeman, J. Hersch & L. Mishel, eds. (Chicago: University of Chicago Press, 2005) 47 (mixed results of 1990s campaigns, largely in galvanizing other institutions such as the ILO or the U.S. government; limited involvement of developing world workers); J. Graubart, Politicizing a New Breed of Legalized Transnational Political Opportunity Structures: Labour Activists Uses of NAFTAs Citizen-Petition Mechanism (2005), 26 Berk. J. Empl. & Lab. L. 97; A. Harrison & J. Scorse, Moving Up or Moving Out? Anti-Sweatshop Activists and Labour Market Outcomes (2004), National Bureau of Economic Research Working Paper 10492 (campaign against sweatshops in Indonesia resulted in wage improvements, but also led to some plant closures and relocations); T.G. Kidder, Networks in Transnational Labour Organizing, in Restructuring World Politics: Transnational Social Movements, Networks, and Norms, S. Khagram, J.V. Riker & K. Sikkink, eds. (Minneapolis: University of Minnesota Press, 2002) 269 (Transnationals Information Exchange, Institute for Agriculture and Trade Policy, Mujer a Mujer, Tennessee Industrial Renewal Network, Factor X, Caribbean and Central American womens organizations); G.W. Seidman, Beyond the Boycott: Labor Rights, Human Rights, and Transnational Activism (New York: Russell Sage Foundation, 2007) (comparing consumer boycotts of corporations in apartheid South Africa, of child labour in Indian carpet manufacture and of Guatemalan apparel manufacture under poor labour conditions, and emphasizing limited success unless state institutions are involved).

(a)

Framework Agreements It is sometimes asserted that framework agreements are not legally enforceable. We

regard this conclusion as premature. There are countries in which collective bargaining agreements are indeed not regarded as legally enforceable. However, in the U.S., agreements between unions and employers have always been regarded as legally enforceable, and that has also been true in Canada for quite some time. 122 There is no reason why framework agreements should be any different, unless they begin to state explicitly that they are not legally enforceable. Theoretical enforceability, of course, does not mean that existing IFAs are of any great value to unions; as we have seen, the IFA between H&M and UNI hardly promised anything at all. However, let us suppose, for the sake of argument, an IFA like that at IUF/Danone, which promises negotiations over plant closings that may exceed an employers obligation under U.S. law, or like that at ICEM/Freudenberg, which promises to respect employees free choice of unions and might be characterized as a kind of neutrality agreement. Could a U.S. union, seeking negotiations or employer neutrality, respectively, enforce such promises? An easier case under U.S. law is one where the organizing union, seeking to enforce the neutrality pledge in a framework agreement, is affiliated with the GUF that negotiated the agreement. The federal common law of collective bargaining agreements, developed by courts under the jurisdictional LMRA s.301(a), recognizes third-party beneficiaries, although so far in

122

Suits to enforce U.S. collective bargaining agreements have been governed since 1947 by federal law under the Labour-Management Relations Act s. 301(a), 29 U.S.C. s. 185(a), but long before then courts enforced collective bargaining agreements as contracts. See C.W. Summers, K.G. Dau-Schmidt & A. Hyde, Legal Rights and Interests in the Workplace (Durham, N.C.: Carolina Academic Press, 2007), at pp. 608-609 and cases cited. The Canadian practice of enforcing collective bargaining agreements is not as longstanding as that of the U.S. See Labour Law Casebook Group, Labour and Employment Law: Cases, Materials and Commentary, 7th ed. (Toronto: Irwin Law, 2004), at pp. 576-578.

contexts rather different from our hypothetical one. 123 Surely that case law would support a suit to enforce an International Framework Agreement by a U.S. union affiliated with the GUF that negotiated the agreement. But what about the H&M/UNI scenario? That is, an employer faced with organizing activity signs an IFA with a GUF, which promises future employer neutrality or makes other commitments respecting future organizing, but which does not include the organizing union. Could the excluded union enforce these promises? We have urged the neutrality agreement as the closest domestic analogue to the IFA, but have been unable to find any decisions to the effect that one organizing union can enforce pledges of neutrality made to another. 124 Probably the first suits to enforce IFAs will be brought by unions affiliated with the signatory GUF. Thus, while the H&M/UNI agreement is unlikely to be the first IFA of which enforcement is sought in a U.S. court, we see no general legal obstacle to such a suit.

(b)

Transnational and Sympathetic Strike Activity Although the law has not yet shaped International Framework Agreements or other

instruments of transnational union agreement with employers, it plays a major role in inhibiting transnational solidarity actions which may lead to such framework agreements, including the pattern (noted above) of U.S. unions turning to foreign unions for support while offering none in

123

See, e.g., Lewis v. Benedict Coal Corp., 361 U.S. 459 (1960), and Schneider Moving & Storage Co. v. Robbins, 466 U.S. 364 (1984) (trustees of benefits fund created under collective bargaining agreement); Groves v. Ring Screw Works, 498 U.S. 168 (1990) (individual employees could sue employer to enforce collective bargaining agreement where unions only mode of enforcement was to strike, and union chose not to). 124 An American employer is normally required as a matter of statutory labour law, not contract, to extend to each non-majority employee organization the courtesies that it extends to the others: Black Grievance Comm. v. NLRB, 749 F.2d 1042 (3d Cir. 1984); NLRB v. Northeastern Univ., 601 F.2d 1208 (1st Cir. 1979). See generally A. Hyde et al., After Smyrna: Rights and Powers of Unions that Represent Less than a Majority (1993), 45 Rutgers L. Rev. 637, at pp. 659-661.

exchange. Let us return, for purposes of illustration, to the GM workers Day of Solidarity, in which 40,000 GM employees around the world stopped work for one day to protest a plant closing in Portugal. 125 Stopping work in solidarity with foreign workers presents difficult legal issues under many systems of domestic labour law, which often restrict industrial action taken during the life of a collective agreement or taken against anyone other than the immediate employer, narrowly defined. 126 European countries differ considerably in the protection they give to strikes, and there is no discernible trend toward uniformity, such as by making the matter one of EU law. Several legal issues arise. Does a refusal to handle goods count as a strike? Does the action seek a collective agreement? Is the workers solidarity motivated by self-interest? Is the strike political or economic? 127 Due to secondary boycott law, U.S. unions are particularly constrained in their ability to support unions in other countries. American labour law treats separately administered divisions of the same corporation as legal strangers, outlawing a work stoppage at one if it is in support of a stoppage at another. 128 A work stoppage with political goals is treated exactly the

125 126

Supra, note 28. See generally Atleson, supra, note 32. 127 Ibid., at pp. 156-175. 128 A.F.T.R.A. v. NLRB, 462 F.2d 887 (D.C. Cir. 1972) (upholding NLRB; broadcast technicians at television station owned by media conglomerate could not picket newspaper owned by same conglomerate). We have never understood this doctrine. It is a longstanding interpretation of the statute by the NLRB that has been approved by appellate courts, but it has never come before the U.S. Supreme Court. However, it fails on a literal reading of the statute and has certainly never received either agency or academic support on policy grounds. The relevant statute prohibits strikes, slowdowns and the like where an object thereof is forcing or requiring any person to cease . . . doing business with any other person: NLRA s. 8(b)(4)(B), 29 U.S.C. s. 158(b)(4)(B). In cases such as A.F.T.R.A., the broadcast technicians do not seek to have the newspaper cease doing business with the television station. They seek to have the television station agree with them, that is, they seek to put economic pressure on their

same as one with economic goals; it is illegal if directed at anyone who is deemed to be neutral with respect to the underlying dispute, as is the case when longshoremen refuse to unload goods from a country disfavoured by the union. 129 In the result, U.S. unions would be liable for damages and an injunction if they stopped work in solidarity with workers at a foreign division of their employer. In contrast, U.S. unions are allowed under U.S. law to ask for acts of solidarity from unions in any other country. 130 Canadian law may be similar, although generalizations about Canadian secondary boycott law are particularly hazardous. 131

immediate, primary employer. The Board outlaws this conduct, purportedly because the union seeks to have the newspaper cease doing business with its customers. This overly broad reading of the statute is not applied in any other context; if it were, it would outlaw primary pickets and primary strikes. If a U.S. union were found to have violated s. 8(b)(4)(B) by (to return to our example) striking against a General Motors plant in solidarity with GM workers in Portugal, the union should in our view seek Supreme Court review of that ruling. Obviously the current Court has no agenda of expanding the freedom of action of labour unions. On the other hand, it has a particular agenda for precise and literal statutory construction, and has reversed Board rulings for infidelity to the statutory text. See, e.g., NLRB v. Kentucky River Community Care, Inc., 532 U.S. 706 (definition of supervisor). Presumably, Board departures from the statutory text that harm unions should be just as vulnerable as departures that assist them. In our opinion, union solidarity at different divisions of the same corporation simply falls outside the statute on any fair reading of its language. However, one might also argue that GM plants in the U.S. are allies of GM plants in Europe, and thus can be picketed if the original action in Portugal is lawful. See generally J.S. Siegel, Conglomerates, Subsidiaries, Divisions, and the Secondary Boycott (1975), 9 Ga. L. Rev. 329; M.H. Levin, Wholly Unconcerned: The Scope and Meaning of the Ally Doctrine under Section 8(b)(4) of the NLRA (1970), 119 U. Pa. L. Rev. 283. This paragraph reflects conversations with Sathya Gosselin. 129 I.L.A. v. Allied Intl, Inc., 456 U.S. 212 (1982). 130 I.L.A. v. NLRB, 56 F.3d 205 (D.C. Cir. 1995), cert. denied 516 U.S. 1158 (1996) [ILA (Canaveral] (no violation for U.S. union to request that Japanese longshoremen not unload ship packed by non-union labour in U.S., since NLRA has no extraterritorial effect). 131 First, the applicable law varies among provinces. Second, questions about the legality of secondary picketing in Canada resulted in the development of a nebulous and often inconsistent body of jurisprudence: H. Dinsdale & D. Awrey, Secondary Picketing in Canada: Thoughts for the Pepsi Generation (2004), 29 Queens L.J. 789, at p. 790. Third, the Supreme Court of Canada has held that constitutional guarantees of freedom of expression privilege at least some secondary picketing by trade unions: Pepsi-Cola Canada Beverages (West) Ltd. v. R.W.D.S.U., Local 558, [2002] 1 S.C.R. 156. The application of this decision to picketing that induces a work

The European Court of Justice, in two much-discussed decisions in the Laval and Viking cases recently applied asymmetric principles of globalization to disable European unions from taking effective action against transnational threats to labour standards. 132 A Latvian construction company, Laval, was the low bidder and was awarded the contract to build a school in Sweden. It formed a Swedish subsidiary and transferred (posted, in EU parlance) 35 workers from Latvia to Sweden. Under the applicable Latvian collective agreements, these workers were paid on average around 1500 per month, plus 660 per month in in-kind benefits such as meals and travel allowance. Swedish construction unions asked Laval to sign their collective agreement with Swedish contractors, calling for a base pay of 16 per hour plus additional payments for insurance and benefits. Laval refused to sign this agreement, or indeed to negotiate with the Swedish unions. The Swedish unions picketed (blockaded, in EU parlance) the job site, shutting it down. Laval withdrew from the school project and pursued legal remedies. Swedish courts were unreceptive, but in December 2007 the European Court of Justice ruled that the union action violated EU law and that the Swedish courts were obligated to compensate Laval for its losses. 133 The Court principally construed the European Parliament and Council Directive 96/71 on the posting of workers, 134 although it also referred to treaties creating more general commitments

stoppage, rather than a consumer boycott, is unclear. For example, one trial court has enjoined picketing designed to induce a sympathetic stoppage at another division of the same parent corporation, distinguishing Pepsi-Cola as a decision on the common law, inapplicable in provinces that regulate secondary picketing by legislation: Fraser Papers Inc. v. I.W.A. Canada (2002), 251 N.B.R (2d) 22 (Q.B.). 132 Laval, supra, note 5; Viking, supra, note 5. 133 Laval claimed damages of around U.S. $465,000. See Laval asking unions for 2.8 million kroner in damages, <http://www.thelocal.se/11730/20080513/>. 134 Council Directive 96/71, 1996 OJ L018, Article 3, para. 8. The matters listed in the first subparagraph of paragraph 1 of this Article [3] are the seven areas of labour law as to which

to capital mobility. The Directive is a very careful compromise, and was parsed with care. It permits an employer in Lavals situation to post workers from Latvia rather than hiring locally, but requires that the employer guarantee to those posted workers three kinds of terms and conditions of employment . . . . First are those laid down . . . by law, regulation or administrative provision. Second are those set by collective agreements or arbitration awards which have been declared universally applicable . . . . Third, states (such as Sweden) which do not have a provision for making collective agreements universally applicable

may, if they so decide, base themselves on: collective agreements or arbitration awards which are generally applicable to all similar undertakings in the geographical area and in the profession or industry concerned, and/or collective agreements which have been concluded by the most representative employers and labour organizations at national level and which are applied throughout national territory, provided that their application to the undertakings referred to in Article 1(1) ensures equality of treatment on matters listed in the first subparagraph of paragraph 1 of this Article between those undertakings and the other undertakings referred to in this subparagraph which are in a similar position.

Sweden falls through all the cracks in this formulation. Unlike most EU states, it has no law on minimum wages such is the strength of its unions and no formal provision for making collective agreements universally applicable. It does have collective bargaining agreements in construction that are generally applicable, but these often provide that actual wage employers of posted workers must comply with the law and universally applicable collective bargaining agreements in effect at the place where work is to be performed: (a) maximum work periods and minimum rest periods; (b) minimum paid annual holidays; (c) the minimum rates of pay, including overtime rates; this point does not apply to supplementary occupational retirement pension schemes; (d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings; (e) health, safety and hygiene at work; (f) protective measures with regard to the terms and conditions of employment of pregnant women or women who have recently given birth, of children and of young people; (g) equality of treatment between men and women and other provisions on non-discrimination. The reference to undertakings referred to in Article 1(1) means undertakings established in one EU Member State that post workers providing services in a different Member State.

rates are to be negotiated on a project-by-project basis. Accordingly, the Directive did not, of its own force, require Laval to observe the wage rates in Swedish collective bargaining agreements to which Swedish construction firms were bound. But of course the issue before the Court was the legality of the actions of the Swedish unions, not Lavals obligations under the Directive proper. The Court held that the unions violated EU law in attempting to gain anything not already given to them by the EU Directive. Thus, Sweden had to enforce this limitation on union action, because the theory is that the requirements of the Posted Workers Directives are both the minimum required by EU law and the maximum that any private actor might seek to impose on the employer. Most commentators will view this decision through the lens of national efforts to maintain labour standards and prevent what Europeans call social dumping, in this case the undercutting of high Swedish wages by imported Latvian labour. From this perspective, the practical effect of the decision may turn out to be limited. The Court noted that the Directive permits states to enforce their substantive employment legislation, and collective agreements made generally applicable. It also observed that [d]irective 96/71 did not harmonize the material content of those mandatory rules for minimum protection. That content may accordingly be freely defined by the member states . . . . 135 In other words, Sweden, or any other Member State, is free to legislate labour standards that are as high as it likes. Such legislated standards would then be binding on foreign contractors employing foreign workers in Sweden. The Court further noted that Swedish employment law was fully binding on Laval and covered every term of employment that the Directive permits to be imposed, with the sole exception of rates of pay,

135

Laval, supra, note 5, at para. 60.

which are not legislated in Sweden. 136 Finally, Laval would also have been bound by collective agreements made generally applicable (extended, in common European parlance) through governmental action or uniform union treatment. Many if not most European labour standards are found either in legislation or in extended collective agreements. Among EU countries, Sweden is anomalous in making use of neither device, and moreover in permitting different wage rates at different construction sites. In theory, then, tools are available to the Swedish authorities to remove the cost advantage of using Latvian rather than Swedish labour. It is beyond our expertise to evaluate the likelihood or desirability of Swedens adopting such devices. There is little doubt, however, that limiting unions to enforcement of governmental standards offers less effective protection against downward wage pressure than would be offered by protecting autonomous union action against low wages, such as workplace protest. 137 Our concern about the Laval decision reflects, first, its devaluing of worker-initiated as opposed to governmental labour standards, and second, the cloud it places (together with the companion Viking decision) over trans-European industrial action, which we think should play a bigger role in eliminating conflict between, for example, Swedish and Latvian construction workers. In this regard, we emphasize the legitimacy and efficacy of employment standards found in union agreements or imposed by unilateral employee action. This article is devoted to establishing that transnational union action is a legitimate source of norms, on an equal plane

136

Ibid., at para. 64. The Directive, Article 3, para. 1, permits states to enforce, as to posted workers, legislated or universally applicable bargained standards in seven areas of labour law, set out supra, note 134. Sweden has legislation on all of these except for (c), minimum rates of pay. 137 A study comparing union responses to posted labour in Finland, Germany, and the United Kingdom concludes that the only effective means of preventing undercutting of labour standards involves autonomous enforcement by unions. Neither domestic construction employers nor the state have proven to be a reliable ally of union attempts to maintain negotiated standards. See N. Lillie & I. Greer, Industrial Relations, Migration, and Neoliberal Politics: The Case of the

with norms in state law, international law, and treaties. This is hardly a radical concept, however much it may be at odds with current scholarship and practice. One of the outstanding achievements of North American labour law has always been its recognition of negotiated outcomes between unions and employers as a kind of law decentralized, individuated, the practical alternative to top-down state regulation. 138 This legal pluralism at one time influenced the leading European labour law scholarship. 139 To a North American, it is simply a category error to treat state requirements as exhaustive of an employers obligations that is, to jump from a Directive that requires a Latvian employer building a school in Sweden to comply with legislation and universal collective bargaining agreements, to the conclusion that no other obligations might arise from negotiations with local unions and that economic pressure may not be applied even to bring about such negotiations. The Directive does not of its own force make its obligations exclusive, but the European Court of Justice reads it that way, with the result that unions may engage only in such actions as the European Union permits in advance. Obligations to respect free movement of capital are understood not merely as obligations of member states, but of individuals as well. This goes well beyond a requirement that, say, Swedish unions must treat foreign employers just as they would treat Swedish employers, for this is precisely what the unions did in Laval. Neither the European Council nor the European Parliament has ever decided that unions must advance their interests exclusively through state action as opposed to autonomous action, yet the Court acts as if they had. This amounts to a kind of asymmetric globalization, under which capital must

European Construction Sector (2007), 35 Pol. & Socy 551. 138 M. Barenberg, The Political Economy of the Wagner Act: Power, Symbol and Workplace Cooperation (1993), 106 Harv. L. Rev. 1379. 139 See, e.g., Gino Giugni, Diritto Sindacale, 8th ed. (1988), at p. 11, treating as union law the

be free to move around the world without interference by state or private actors while worker organizations are limited by territory. But if Swedish unions have no right to negotiate with Latvian employers working in Sweden, what about the Latvian union representing its members? Could it bargain transnationally, negotiating (for example) a higher wage rate applicable to Sweden, perhaps in collaboration with Swedish unions? Since Swedish unions may not act unilaterally in defence of their negotiated standards, they would have to work with Latvian unions. However, the companion Viking decision 140 knocks away this source of union power too. Viking Line operated seven ferry boats, including the Rosella, which ran between Tallinn, Estonia, and Helsinki, Finland. The company was incorporated, and the Rosella was registered in Finland. Its crew was represented by the Finnish Seamens Union (FSU), which was affiliated with the ITF. In October 2003, Viking informed the FSU of its intent to reflag the Rosella in Estonia or Norway, and to conclude a collective agreement with a union in one of those countries, anticipating lower wage rates. The FSU made its opposition clear, and notified the ITF of Vikings plans. The ITF agreed with the FSU that Viking had to continue to deal with it, and in November the ITF notified its affiliates of the dispute, requesting that none of them negotiate with Viking about the Rosella. Negotiations between the FSU and Viking quickly hit what North Americans would call an impasse solely over the reflagging issue. The FSU insisted on a clause stating that reflagging would not result in any layoffs or changes in employment terms, and Viking insisted on its right to reflag without such restrictions. With a strike imminent (and legal under Finnish law), Viking

product of both state and worker organizations, reflecting U.S. scholarship. 140 Viking, supra, note 5.

agreed to postpone any reflagging, and pursued remedies under EU law against the ITF circular and FSUs threatened strike against reflagging. The European Court of Justice avoided clear resolution of the issues. The Court observed that the freedom to establish a business is fundamental in EU law, that it is privileged against private interference, and that the unions proposed terms (no layoff, no change in employment terms) would have rendered reflagging pointless, 141 as of course it was intended to do. The unions had thus restricted Vikings protected freedom of establishment. 142 The Court went on to hold that such a restriction might be justified if it pursues a legitimate aim compatible with the Treaty and is justified by overriding reasons of public interest. However, the Court added, even if that were the case, [the restriction] would still have to be suitable for securing the attainment of the objective pursued and must not go beyond what is necessary in order to attain it. 143 Collective action for the protection of workers might in some cases constitute a justified restriction on freedom of establishment. 144 The Court left it to the national court to determine whether the union actions in this case constituted such protection of workers; this would involve assessment of the actual threat posed by Vikings proposed actions, and of whether the unions action was a suitable response and one that did not go beyond what was necessary to protect workers. 145 Putting the Laval and Viking cases together, it appears that an employer which is party to a weak collective bargaining agreement (such as a Latvian construction agreement) has the right to carry that agreement and those workers with it to any other country where it does business

141 142

Ibid., at para. 72. Ibid., at para. 74. 143 Ibid., at para. 75. 144 Ibid., at para. 77.

but an employer which is party to a strong collective bargaining agreement (such as a Finnish sailors agreement) is privileged to avoid it by re-establishing its business in another country, even when there has been no territorial (or any other) change in its operations. Weak collective agreements have transnational effect, while strong collective agreements may be avoided unilaterally. The union may not take industrial action in its own country relating to work performed in that country by an employer from another EU country, but must content itself with the application of its own countrys formal law. This might suggest that the union should put its efforts into requiring employers to comply with favourable state law, since the union cannot try to impose better terms by its own efforts. However, the Finnish unions did attempt precisely to keep the Rosella under Finnish law, and while the Court held that this was not necessarily illegal, it restricted the union to what was strictly necessary and proportional to the protection of workers. Globalization, it seems, is asymmetric; capital is global, while the union is restricted. The Swedish union in Laval lost because it was too local; it was concerned only with a Swedish construction project, and was insufficiently sensitive to the Latvian collective agreement under which the Latvian workers were hired. But the Finnish union in Viking lost because it was too global; it tried to extend its reach beyond the Finnish flag (presumptively legitimate) to a vessel flagged in Estonia or Norway, where the reach of the Finnish union became presumptively illegitimate. The Finnish Seamens Union had the good fortune to be affiliated with the ITF, the first truly global union, and to be able to call on its brother and sister organizations to refuse to assist Vikings reflagging, which was frankly designed exclusively to lower its labour standards

145

Ibid., at paras. 80-90.

and to serve no other corporate purpose. 146 While the European Court of Justice does not reach the issue, the global aspect of the Finnish unions action clearly does not privilege it, and may well be a factor rendering it unnecessary or disproportionate, and hence unprotected. Thus, on the reasoning in Viking, the Swedish union in Laval could not have been sure of protecting itself by forming a European union of construction workers to standardize compensation and benefits, on the model of the ITF for sailors. Thus, most of the observations of the Court do not explain the results in Laval and Viking, which take opposite positions on such assertedly key issues as respect for collective bargaining agreements, or localization as opposed to globalization, or formal law as opposed to collective agreements as a source of labour standards. The only neutral principle that explains both results is that capital must beat labour in the new Europe. 147 Untangling this confusion is a project beyond the scope of this article. While there is no single sword that can cut the Gordian knot, the silence of the International Labour Organization on these questions is particularly puzzling. The ILO exists to facilitate the improvement of labour

146

The most important U.S. decision on the employers duty to bargain addresses the supposed needs of an employer which eliminates jobs while satisfying three elements: (1) its reasons are purely financial; (2) it has no animus against the union; and (3) labour costs play no part in its decision. An employer whose decision to eliminate jobs satisfies these three elements has no obligation to bargain with its union. See First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981). One of us has argued that such an employer is purely a figment of the legal imagination and has never been observed in real life certainly not in a proceeding before the NLRB: A. Hyde, First National Maintenance Corp. v. NLRB: Eliminating Bargaining for LowWage Service Workers, in Labour Law Stories, L.J. Cooper & C.L. Fisk, eds. (New York: Foundation Press, 2005). Viking, refreshingly, did not claim that its proposed reflagging would have accomplished anything except to cut labour costs; the European Court of Justice, with a candour rarely observed in North America, observed that reflagging would have been pointless without the freedom to dismiss Finnish workers and to lower labour standards. 147 Writing before these decisions, Lillie and Greer observe, supra, note 137, at p. 555: Crossborder labour mobility is nothing new. What is new is that it forms part of a deliberate and strategic deregulatory project and is implemented in ways that undermine national labour

standards through what it calls tripartism: negotiation among unions, employers and states. Greater global migration of labour threatens this tripartism in a way that the ILO seems not to have noticed. Increasingly, the most exploited labourers in the world are migrants excluded from participation in the host countrys political processes and from its labour unions as well. 148 The ILO must globalize its concept of tripartism in multiple dimensions. Worker freedom of association must include the freedom to associate in global unions such as the ITF to the same extent as in national or local unions. National tripartism must include some kind of representation for migrant workers, normally through national unions, since norms of international law do not require host countries to admit migrant labourers to citizenship or political participation. Swedish unions, for example, must be required to secure, not prohibited from securing, the best labour conditions for migrant construction workers. And since representation by Swedish unions obviously cannot be the exclusive form of representation for migrant Latvian construction workers, unions must be encouraged or required to work together to improve construction standards all across Europe, rather than being restricted from doing so. The ILO is the place for these projects.

4.

A PROBLEM FOR DISCUSSION: ORGANIZATION OF SEASONAL AGRICULTURAL WORKERS IN CANADA As academics studying global labour, we find ourselves in a familiar position with respect

to transnational organization. We lack data that permit comparison of different kinds of

regulation. 148 Consider South Asian migrants in a Persian Gulf emirate: see Human Rights Watch, Building Towers, Cheating Workers: Exploitation of Migrant Construction Workers in the United Arab Emirates (November 12, 2006), available at <http://hrw.org/reports/2006/uae1106>. Thanks to Dylan Letrich for finding this report and for helping us to see the conflict between global

organization or regulation, and we lack theories that predict likely outcomes. This means that academic work can contribute little to the strategic choices of worker representatives. Consider the intensely practical problem of designing effective worker organization for seasonal migrant agricultural workers from Mexico and the Caribbean who work in Canada and are currently unrepresented. The Canadian Seasonal Agricultural Workers Program is a formal program of the Canadian government that has existed for over 40 years. In other words, the choice at hand is not the choice that conservatives like to posit between a regulated and unregulated labour market; we are already dealing with a highly regulated labour market, and the only questions are who will make the regulations and what they will be. The program originated as a pilot project negotiated with Jamaica, and was later expanded to include Mexico and seven smaller Caribbean countries. Memoranda of understanding were concluded between the governments, including standard written contracts of employment. Human Resources and Social Development Canada has turned over its administrative responsibilities to provincial organizations of growers, to Foreign Agricultural Resource Management Services (FARMS) in Ontario, and to the Fondation des entreprises en recrutement de main-doeuvre agricole (FERMES) in Qubec. Workers are admitted for no longer than eight months, must work in agriculture and must reside on the property of the sponsoring grower. The employment agreement gives the grower the right to have any worker repatriated. Wages are calculated through formulas to determine the prevailing wage, which is normally close to the statutory minimum wage. In 2002, the minimum wage in Ontario was $6.85 an hour; agricultural workers were paid $7.25, less deductions for federal unemployment insurance (although they do not actually qualify for benefits). There are no migration and ILO tripartism.

methods of dispute resolution specified in the employment contracts, and enforcement in court has apparently never been tried. Consulates from the sending countries are in theory available to hear complaints but seem to play little role. 149 Until 2006, none of the migrant agricultural workers was represented by a labour organization, though some organizing efforts are ongoing. In September 2006, affiliates of the United Food and Commercial Workers (UFCW), a U.S.Canada international union, won union elections at three farms in Qubec and one in Manitoba. For present purposes, we assume that the Canadian Seasonal Agricultural Workers Program is a valuable one that meets the needs of workers and growers. It is vastly superior to the haphazard U.S. recruitment of migrant agricultural employees, 70 percent of whom are estimated to work illegally, and it might well serve as an inspiration for reforms in the U.S. 150 Still, it defies credulity to suppose that there are no problems which might be addressed through worker representation. Even in those Canadian provinces that do not exclude agricultural workers from the scope of their labour laws, we do not see much union representation of those workers. Presumably this is because of their very global status: their sojourn in Canada is temporary, and this largely puts them beyond the reach of organizers. However, it is easy to see a role for organizations that represent migrant agricultural workers. Political representation could be very important for example, representation in the drafting of the standard employment contract, or in the administration of work-based insurance programs. The political role is particularly

149

V. Verma, The Mexican and Caribbean Seasonal Agricultural Workers Program: Regulatory and Policy Framework, Farm Industry Level Employment Practices, and the Future of the Program under Unionization (North-South Institute, December 2003); Commission for Labor Cooperation, Protection of Migrant Agricultural Workers in Canada, Mexico, and the United States (2002). 150 We cannot explore this topic here. See L.W. Foderaro, Plenty of Apples, But a Possible Shortage of Immigrant Pickers, The New York Times, August 21, 2007, p. B1.

pertinent, given that governmental and diplomatic functions have been handed over to the growers themselves. In light of this history of privatization of regulation, one might imagine the parallel delegation of immigration or other responsibilities to farmworker organizations. If we were asked to help design structures of representation for these workers that might serve both their needs and the legitimate interests of employers, which of the following would we recommend? (1) Representation by locals of Canadian unions. (2) Representation by locals of Mexican or Jamaican unions. (3) Representation by locals of Canadian unions, cooperating formally or informally with other unions in the hemisphere, perhaps through a kind of North American works council for agricultural workers, which does not now exist but which could be modelled on the European Works Councils for automobile workers. (4) Representation by locals of Canadian unions, cooperating formally or informally with immigrants rights groups or other non-union community organizations representing Mexicans or Caribbeans in Canada. (5) Representation by a new transnational union of migrant agricultural workers, on the model of the International Transport Federation, which represents the worlds sailors a union that could represent migrants throughout North America. Would such a group find itself under pressure to demand the same compensation for cucumber pickers in Canada, Mexico and the U.S.? Would that be a bad thing? Under any of these alternatives, does the North American Agreement on Labour Cooperation have any relevance? The ILO? Or are the relevant legal norms entirely those of Canadian provincial labour law and the Canadian Charter of Rights and Freedoms? We cannot answer all of these questions, but we should ask what kinds of ethnographic, economic, or legal research would be helpful in addressing them. With a view to advancing the discussion, let us propose some tentative conclusions based

on the research we have done for this article. First, Canadian unions should play a major though not exclusive role in representing seasonal agricultural employees. Those unions have the necessary expertise in representing workers, both in the workplace and through political channels. The principle should be that primary representation for any worker is provided by the union which operates where the work is done. North American unions must prevent the Laval situation, in which Mexican nationals picking crops in Canada or the United States would be conceptualized as governed by a Mexican collective bargaining agreement which Canadian and U.S. unions were powerless to affect. While primary responsibility must fall on Canadian unions, it is possible that they might learn from some of the more dynamic non-union associations of such workers, for example, the Coalition of Immokalee Workers in Florida, with its innovative community organizing and its agreements with purchasers of farm produce (including Taco Bell and Burger King). 151 We know of few unions anywhere in the world that are limited to migrant workers. 152 Perhaps such organizations might emerge one day, but they will be novelties. For example, if existing unions in the Gulf emirates were to refuse to represent migrant workers, those workers might be forced to form their own organizations. German construction unions have tried to found

151

The Coalition of Immokalee Workers is discussed in E. Leary, Immokalee Workers Take Down Taco Bell (2005), 57 Monthly Review 11. Some legal issues raised by the Coalitions agreement with Taco Bell are discussed briefly in A. Hyde, What is Labour Law? in Boundaries and Frontiers of Labour Law: Goals and Means in the Regulation of Work, G. Davidov & B. Langille, eds. (Oxford: Hart, 2006) 42. 152 Jennifer Gordon discusses two attempts at binational organization of migrant construction workers in a forthcoming report, Restructuring Temporary Labour Migration to Reinforce Workers Rights: A Preliminary Report on Emerging Experiments. One is operated in Asia by the GUF Building and Woodworkers International, and the other is a Global Union Hiring Hall operated by an entity called International Labor Management Alliance. Gordon informs us of several unions in Hong Kong that are limited to migrant workers, all of them affiliated with the Hong Kong Council of Trade Unions: a union of Nepalese construction workers, and unions

a European Migrant Workers Union focused on migrant construction labour, but without much success so far. Construction unions in the United Kingdom have opposed this strategy, arguing for integration of migrant workers into existing unions. 153 In our opinion, the U.K. unions have the better of this argument, particularly in light of the facts of Laval, which we take to be fairly typical. Whatever the legal limitations on picketing and blockading, the union should demand that Laval negotiate with Swedish unions representing the migrants, and that it match normal Swedish standards as closely as possible. A separate migrant workers union, if it concluded any agreement at all, would surely undercut those standards. Although we are of the view that under existing institutional arrangements, Canadian unions should have primary responsibility for representing migrant agricultural workers in Canada, we also support the creation of standing alliances between those unions and NGOs that are concerned with migrant workers, and possibly of alliances with unions elsewhere in North America. 154 Church, ethnic, and other groups working with Mexican or Jamaican labour are natural allies of the Canadian unions in this endeavour. They might assist in outreach, education, or mobilization of consumers should the unions ever seek to organize consumer boycotts of nonunion produce. At least in the United States, non-union groups may have greater constitutional freedom of expression than unions. 155 That having been said, we have no real body of knowledge

representing domestic workers from Indonesia and the Philippines. 153 Lillie & Greer, supra, note 137, at p. 555. 154 Some of the problems associated with creating such unions are explored in J. Hill, Binational Guestworker Unions: Moving Guestworkers into the House of Labor (2008), 35 Fordham Urban L.J. 307. As mentioned above, experience suggests that alliances with non-union worker rights organizations are probably more valuable than alliances with unions. 155 Pope, supra, note 114; Summers, Dau-Schmidt & Hyde, supra, note 122, at pp. 413-414.

on such alliances. Even case studies are sparse. 156 Similarly, while alliances among Canadian, American, Mexican, and Jamaican unions representing agricultural workers would likely be a good thing, they do not currently exist. The GUF covering agricultural workers (the International Union Federation for Food, Agriculture and Allied Industries) is not very effective, and such alliances would be expensive to organize and might not pay off immediately. They could be sources of information and support, as growers attempted to shift crop production among countries. In our opinion, efforts to organize farm workers on the ground are clearly more deserving of resources than transnational alliances among their organizations. However, one anticipates mutual misunderstanding and therefore a need for education the first time any such group reached out for help from others, as U.S. unions did in the Bridgestone and H&M struggles. This proposed structure, in which migrant workers are primarily represented by unions at the place where they work, while those unions maintain working alliances with labour and nonlabour groups, raises few legal issues in North America. North American growers, unlike those in the EU, do not sign agreements with Mexican or Jamaican unions and then assert that they have posted Mexican or Jamaican labour to Canada or the United States. North American growers do not assert that demands to pay Canadian or U.S. wage rates interfere with any right of establishment under the North American Free Trade Agreement. Workers picking crops in Canada or the U.S. are understood to be governed by the labour laws of those countries. In our view, it is unnecessary and undesirable to develop new transnational norms for them. For example, transnational representation of North American workers should not receive formal

156

See, e.g., L. Turner & D.B. Cornfield, eds., Labor in the New Urban Battlegrounds: Local Solidarity in a Global Economy (Ithaca: ILR Press, 2007).

recognition from governments or under the North American Agreement on Labour Cooperation. What the state gives to unions, the state may take away. However, Canadian or U.S. unions and other organizations representing migrant farm workers will sometimes find that they should organize transnational product boycotts or seek other forms of transborder support. Advocates should slowly educate courts about the existence and legitimacy of this kind of support. The asymmetry of U.S. law, privileging any such calls for support while denying U.S. unions the right to give it, will come under pressure in the next decade. We think that both halves of this assymetry will need to be rethought. As to calls for support, while we agree that U.S. unions are allowed to ask for solidarity from non-U.S. unions, and thus that the ILA (Canaveral) case was correctly decided, 157 the Courts observation that the NLRA lacks extraterritorial effect (which was entirely unnecessary to the opinion) will come back to bite a U.S. worker some day soon. The opinion should have rested entirely on the lack of agency between the U.S. unions and their Japanese supporters and on the privileged nature of requests for voluntary support, rather than on extraterritoriality. Similarly, secondary boycott laws will have to recognize the legitimacy of acts of support for foreign workers, which so often are motivated by the need to protect North American labour standards. Whatever the resolution of these relatively minor legal points, transnational union organizations and alliances will continue to grow in a global economy marked by increased migration of capital and labour. Their design will represent a major challenge in the coming decades.

157

Cited supra, note 130.