My colleagues saw a line item in the advance sheets and said “this must be wrong, Joe; some reporter has obviously misunderstood.” The report was simple: a local labor dispute at the El Super grocery stores in several southern California locations is now an international legal issue. Worse, it was totally true.
El Super, a small chain of 50 supermarkets had a routine labor dispute with Local 770 of the United Food & Commercial Workers (UFCW). Despite twenty-plus bargaining sessions, the parties failed to reach agreement, and the union resorted to boycotts and a strike.
But this time, the dispute did not take its normal course under the NLRA. El Super found itself embroiled in an international incident. How could this happen in a small town in Los Angeles County? Let’s segment that process because it is certain to recur.
First, the UFCW filed a complaint with the U.S. Department of Labor against El Super’s Mexican parent under the “labor side-agreement” to NAFTA. This complaint alleged that the parent’s use of so-called “protection contracts,” which are a lawful part of Mexican labor law, violated employees’ rights to freedom of association.
Second, the unions filed a complaint with the U.S. State Department under OECD Guidelines for Multinational Enterprises. This alleged that El Super engaged in an “aggressive, multi-year campaign of coercion” against workers and of interfering with workers’ rights to freedom of association by threatening, interrogating, spying on, disciplining and discharging employees because of union activities.
Veterans of U.S. labor relations will see that those might be routine allegations to be litigated at the National Labor Relations Board (which, for all its flaws, looks more advantageous than the alternatives El Super now faced). With these NAFTA and OECD complaints, this local labor dispute had become an international PR nightmare and political football.
This moved from the bargaining table to global PR talking points; similarities to legal strategies for any other labor dispute in the history of Los Angeles County disappeared. Former UFCW President Ricardo Icaza cried out that “an international solution is necessary to this international problem.”
In July, the U.S. Department of Labor (DOL) found that the unions failed to establish that the Mexican government was responsible for allowing the alleged labor law violations but simultaneously expressed “its serious concerns regarding issues raised in the submission.” For its part, the State Department concluded its investigation on the OECD complaint by noting that the allegations were “both material and substantiated.”
Put simply, two separate Cabinet departments publicly condemned this grocery store under international law – and without a trial – due to a local labor dispute at one store in California. There was no sanction other than being pilloried: El Super is now the Hester Prynne of American labor law burdened with the scarlet letter of adverse publicity.
This is emblematic of a growing trend. Businesses increasingly are finding themselves subjected to a huge supra-national labor regulatory regime. The 2011 publication of the UN Guiding Principles on Business and Human Rights (the Ruggie Principles) has accelerated the process. By the way, these Principles alone span 127 pages, 35 pages of guidelines and 92 pages of interpretive guidance.
Internationalist views are also infiltrating U.S. labor law enforcement. For example, the International Labor Organization (ILO) considers permanent strike replacements an interference with the right to strike. Despite the fact that this has long been permitted by the Supreme Court, the NLRB inched closer to the ILO’s position, limiting the right of an employer to hire replacements if it acted for an “independent unlawful purpose” (a standard purposely ill-defined).
American industrial relations has crossed the Rubicon. Every labor dispute in the smallest town (Santa Fe Springs, California, where this all began has a population of less than 17,000) is now subject to the same battle cry as at El Super: “an international solution is necessary to this international problem.”
Navigating these “internationalizations” (which is my personal passion) is more than can be fit within this blog post, but let me leave you with three thoughts based on too many nights addressing such attempted “internationalizations” of labor disputes:
- Understand that the aspirational statements of today will become the obligations of tomorrow. A regulatory system is developing, one created primarily through treaty obligations, loan documents, and global union agreements. Many obligations arise from company’s own statements of good corporate citizenship.
- Choose words carefully. What may be commonly understood locally may have different meaning globally. For example, U.S. companies frequently adopt Corporate Social Responsibility or Human Rights policies subscribing to “Freedom of Association.” Yet, according to the ILO, that would require relinquishing the right to hire permanent replacements.
- Filter the noise. It is in the interests of many activists, particularly unions, to magnify the issues, obligations, and problems in pursuit of an unrelated agenda, one which may not always be obvious. Pay attention to the man behind the curtain.