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

Electronic copy available at: http://ssrn.com/abstract=1323807

Unions Without Borders: Recent Developments in the Theory, Practice

and Law of Transnational Unionism

Alan Hyde and Mona Ressaissi*

Everything, the cliché has it, is becoming global. Markets, firms, trade flows, migrant

workers, mentalities are all global. Transnational worker organizations and coalitions are

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 game-theoretic 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

* 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 author’s 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, Université du Québec à Montréal, March 29-30, 2007. The authors acknowledge helpful comments on an earlier draft by Jennifer Gordon, Kevin Kolben, and two

Electronic copy available at: http://ssrn.com/abstract=1323807

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 non-union groups such as non-governmental labour rights organizations, ethnic and religious groups, and women’s 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

1 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

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

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. Int’l 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. Int’l Econ. L. 605; K. Van Wezel Stone, “Labour and the Global Economy: Four Approaches to Transnational Labour Regulation” (1995), 16 Mich. J. Int’l L. 987; C.W. Summers, “The Battle in Seattle: Free Trade, Labour Rights, and Social Values” (2002), 22 U. Pa. J. Int’l 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”).

Unions operating in Canada, Mexico, and the

5 P. Germanotta & T. Novitz, “Globalisation and the Right to Strike: The Case for European-Level Protection of Secondary Action” (2002), 18 Int’l 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 Int’l Transport Workers’ Federation and Finnish Seamen’s 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

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.

We find Gordon’s basic insight, that a unionized migrant presents less

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

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

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.

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

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 world’s first genuinely global

Successful norms of transnational labour law rarely

interfere with any country’s 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 country’s long-term interest but that can be a source of short-term advantage if one’s

trading rivals are working to eradicate them. One important implication of this approach is that

failures of transnational regulation normally reflect low trust that one’s 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.

9 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 non-

U.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

Gordon’s discussion of transnational labour citizenship10

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

— 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.

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,

women’s 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

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.

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

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) Formal Structures

(i) 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

A more interesting strategic choice faces a national union which represents diverse

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

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 world’s 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

Formerly known as International Trade Union Secretariats, these structures link national

unions in the same industry.

(A) GLOBAL UNION FEDERATIONS (GUFS)

16 There are ten GUFs.17

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.

All of them have been around for years and

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

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.

They do not have much of an activist tradition.

19

The ITF claims to include about a quarter of the sailors on such ships, or over 90,000.20

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 re-

register 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

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.

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/flags-convenience/index.cfm>.

advantage of the following phenomena: the general vulnerability of transportation services to

delays (“you can’t 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 ITF’s campaign against flag-of-

convenience 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

Company-based European Works Councils (EWCs) have, surprisingly, proven more

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

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

21 Anner et al., supra, note 19, at p. 18. For a more sceptical account of the ITF’s 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 BMW’s 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. Ford’s 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 Greer & Hauptmeier, supra, note 8, at p. 3. 24 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. Rüb, “World Works Councils and other forms of global employee representation,” in Transnational Undertakings: A Survey (Dusseldorf: Hans Böckler 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 Int’l & 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

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 company’s 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.

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.

29

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.

Situational, rather than strategic, use

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 Ford’s 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 UAW’s top Ford official participated in

the European Visteon negotiations.30

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

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.

30 Ibid., at p. 16.

unions as national, not global, institutions;31

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,

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.

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

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 Bridgestone-Firestone and HERE Local 11 Appeal for Support from Japanese Unions” (1999), 5 Bull. of the Ctr. for Transnat’l 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.

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

participated in that campaign.34

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.

(i) Bridgestone/Firestone, 1994-1996

35 It is one of the signal U.S. union victories of the 1990s. We examine only one of

the American union’s tactics — its efforts to internationalize the conflict. While the attempts at

transnational union cooperation are often presented as a success,36

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:

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.

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, “Coase’s Paradox and the Inefficiency of Permanent Strike Replacements” (2002), 80 Wash. U.L.Q. 1185, at pp. 1245-1248, 1262-1267. 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 Japan’s enterprise union.37

Rengo in particular anticipated a request for support, and was actively studying its options.38

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.

The summer 1995 merger of the Rubber Workers with the Steelworkers, and

39 Steelworkers representatives

explained this by saying that “Rengo . . . did not want to get involved.”40

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 Rengo Zenronen Zenrokyo

1997 7.6 million 0.8 million 0.3 million 2003 6.9 million 1.2 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. Pol’y (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>.

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

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

40 Juravich & Bronfenbrenner, supra, note 33, at p. 259. 41 Watanabe & Yamasaki, supra, note 33, at pp. 7-10. 42 Ibid., at p. 7; Juravich & Bronfenbrenner, supra, note 33, at pp. 259-60.

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 company’s

actions could be characterized as illegal.

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 UNITE44

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, 1978-1998” (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 employer’s part.46 H&M’s 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&M’s 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 employer’s 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&M’s 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 UNITE’s 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

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.

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 UNITE’s protests and

demonstrations, which H&M saw as an impediment to meaningful dialogue. H&M’s senior

Swedish managers were quite turned off by UNITE’s 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.”

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&M’s CEO, UNITE

staged yet another demonstration, this one outside an H&M store in New York’s Soho district.54

UNI, the GUF with which both Handels and HTF (but not UNITE) were affiliated, reacted

strongly to these continued efforts on UNITE’s part. According to Jan Furstenburg, head of

UNI’s 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

UNI’s 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 UNITE’s best interests and would not be

supported by UNI policy.56

54 O. Lundh, “De Rasar mot H&M,” Expressen (Sweden), October 25, 2003. 55 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’ Int’l Union, 361 U.S. 477, at pp. 494-495 (1960), holding that the Board has no authority to find a union’s partial strike activity to constitute bad faith.

To UNI, it was enough that H&M was speaking to UNITE, and was

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 UNI’s 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&M’s 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

(newspaper of the Handles union). 57 Bergman, supra, note 56. 58 See supra, note 53. 59 UNI also accepted H&M’s characterization of the conflict as one between two competing unions: UNITE, the actual organizing union (not then affiliated with UNI), and UNI’s 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.

UNITE’s

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

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.

Most importantly, the proposal still called

for an election, and UNITE’s 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.

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 UNITE’s

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 UNITE’s demonstrations and

demands for card-check recognition, approved a Global Framework Agreement with H&M.

67

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 Board’s balancing approach to employee access). 63 M. Akerhielm, “Sweden’s 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.

This agreement was signed in January 2004 at ILO Headquarters in Geneva, and was witnessed

by two ILO Executive Directors.68 The agreement established H&M’s 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 UNITE’s 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 We will discuss Global Framework Agreements more generally infra, Part 2(c). 68 UNI, “H&M and UNI sign groundbreaking agreement,” <http://www.union-network.org/u niinfo.nsf/58f61ccf5875fe90c12567bb005642f9/462dced16c3b7c44c1256e1b002f51d0/$FILE/UNI-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; UNITE’s

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-CIO’s 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 Ibid. 74 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

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).

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.

80

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

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

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

80 These are discussed in the sources cited supra, note 9. 81 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.

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)

International Framework Agreements are the only recent innovative institutional practice

of transnational unionism, but they have largely eluded academic analysis.82

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.

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.

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

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.

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

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 world’s

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

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 Int’l Lab. Rev. 317, 1-3; L. Compa & T. Hinchliffe-Darricarrère, “Enforcing International Labour Rights through Corporate Codes of Conduct” (1995), 33 Colum. J. Transnat’l 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. Transnat’l L. 389; D. O’Rourke, “Outsourcing Regulation: Analyzing Nongovernmental Systems of Labour Standards and Monitoring” (2002), 31 Pol’y 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>.

There are several important differences

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 negotiations93). 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 union’s 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 worker-

funded unions.103

Finally, the process of negotiating a framework agreement creates a strong basis for

96 See Boiral, supra, note 87. 97 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

Stevis and Boswell count 55 IFAs (as of January 2007).

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.

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

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.

and the

Danone Group, a French-based food company. The first in the series (1988) is said to be the

109 International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations, IUF/DANONE Agreements: <http://www.iuf.org/cgi-bin/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 one’s 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

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

(d) Campaigns Linking Unions with Non-Union Organizations

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

Consider the campaign against Kukdong, as reported by César A. Rodríguez-Garavito.

The same is true of transnational labour advocacy

campaigns.

115

Kukdong is a Korean-owned Nike contractor located near Puebla, Mexico.116

This campaign was almost instantly successful. By March 2001 Kukdong had recognized

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 Kukdong’s 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.

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. Pol’y 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. Rodríguez-Garavito, “Nike’s 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. Rodríguez-Garavito, eds. (Cambridge: Cambridge University Press, 2005), at pp. 64-91 (anti-sweatshop 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. Rodríguez-Garavito reports that this is the only independent union

in the Mexican apparel industry.117 A recent volume of case studies118 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

117 As of 2008, however, Kukdong is not listed among Nike’s Mexican suppliers. See <

and might also

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 Lanka’s 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

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 NAFTA’s 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 women’s 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).

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.

(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

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

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 employer’s 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?

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

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

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

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 union’s 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

125 Supra, note 28. 126 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.

A work stoppage with political goals is treated exactly the

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 Int’l, 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 Queen’s 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

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/>.

although it also referred to treaties creating more general commitments

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 Laval’s 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 Laval’s 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

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

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,

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 Sweden’s 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 employer’s 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. & Soc’y 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 decision140

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

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 Seamen’s 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 Viking’s 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.

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 FSU’s 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 union’s 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 Viking’s 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 Viking’s 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 Ibid., at para. 72. 142 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 country’s 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 Seamen’s 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 Viking’s 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

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.

While the European Court of Justice does not reach

the issue, the global aspect of the Finnish union’s 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.

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 employer’s 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 Low-Wage 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: “Cross-border 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 country’s political processes and from its labour unions as well.148

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

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

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-d’oeuvre agricole (FERMES) in Québec. 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

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.

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 Québec and one in Manitoba.

150

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.

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

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 world’s 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

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 Coalition’s 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.

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

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

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.

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.

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 non-

union produce. At least in the United States, non-union groups may have greater constitutional

freedom of expression than unions.

155

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.

That having been said, we have no real body of knowledge

on such alliances. Even case studies are sparse.156

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 non-

labour 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

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.

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

157 Cited supra, note 130.

the Court’s 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.