Last week, the AFL-CIO filed a complaint with the International Labor Organization (ILO) against the Bush National Labor Relations Board (I’m going to try to upload the complaint here but right now we are, as they say, experiencing technical difficulties…or maybe I’m just more lame than I thought). It’s a good indictment of the NLRB–similar to what the AFL-CIO did when it filed a Section 301 trade challenge to Chinese labor conditions. You can get the gist of the entire complaint by reading the following:

First, the Board has denied freedom of association to entire groups of workers. This violates the bedrock principle underlying Convention No. 87 that “[a]ll workers, without distinction whatsoever, including without discrimination in regard to occupation, should have the right to establish and join organizations of their own choosing.” Digest, para. 216.

Second, the Bush Board has trenched upon workers’ fundamental right to strike, which this Committee has deemed “an intrinsic corollary to the right to organize . . . . ” 311th Rep., Case No. 1954, para. 405 (1998); See Digest, para. 523. Recent NLRB decisions, as we discuss, have given employers greater ability to deny reinstatement to returning strikers under a doctrine this Committee has already concluded “entails a risk of derogation from the right to strike . . . . ” 278th Rep., Case No. 1543 (1991), para. 92.

Third, Convention No. 98 provides that “[w]orkers’ and employers’ organizations shall enjoy adequate protection against any acts of interference by each other or each others’ agents,” (Art. 2(1)). This Committee has emphasized that “[a]ll appropriate measures should be taken to guarantee that . . . trade union rights can be exercised in normal conditions with respect for basic human rights and in a climate free of violence, pressure, fear and threats of any kind.” Digest, para. 35 (citing 308th Report, Case No. 1934 (1997), para.135 (emphasis added). Nonetheless, a host of Bush Board decisions have expanded employers’ license under the NLRA to threaten, harass, and intimidate workers who seek to organize or join a union, or participate in collective activities to further their goal of achieving representation.

Fourth, Bush Board decisions have made it far easier for employers to discharge or otherwise discriminate against workers who try to organize a union or engage in other types of concerted, protected activity under the NLRA. This Committee has emphasized, however, that “[a]ntiunion discrimination is one of the most serious violations of freedom of association, as it may jeopardize the very existence of trade unions.” Digest, para. 769. Thus, the Board has turned its back on implementing effective prohibitions against anti-union discrimination, which lies at the

heart of its responsibility to protect freedom of association.

Fifth, while “[t]he Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned” the Bush Board has severely curtailed the already weak remedies available under the NLRA against employer misconduct. 337th Rep., Case No. 2395 (2005), para. 1200; see Digest, para. 817, 818. Over decades of adjudicating unfair labor practice complaints, the Board crafted

special remedies for egregious situations. Now, the Bush Board most often refuses to apply them. At the same time, unconscionable delays riddle the Board’s adjudicatory process.

For all of these reasons, the United States has no longer protects workers in the exercise of their protected rights under the NLRA. Digest, para. 817. Accordingly, we submit that the United States has abandoned its commitment to respect, promote and realize workers’ right of freedom of association.

    I’ll discuss this more in a bit. Obviously, one big question: what effect will this have? I don’t think the U.S. government is quaking in its boots at the thought that the ILO might even find merit in the complaint. The real value, it seems to me, is that it simply continues to build the case here and abroad that there is no right to organize left in the U.S., from a practical point of view.

    The complaint goes through a litany of bad decisions and reversals of settled law that really capture–though in a bit boring legalese–the state of workers’ rights in America: the loss of the right to strike, the taking away of rights formally enjoyed by workers such as faculty members and, of course, the protection of workers’ rights to organize. Here’s one example:

The Board has also muzzled employee free speech by applying broad bans against the wearing of union insignia by finding that special circumstances justify the restriction. This violates a basic principle of freedom of association established by this Committee, that “the choice of union insignia falls within the scope of freedom of expression, the respect of which is essential for the normal exercise of trade union rights, and therefore should, as a general principle, be left to the internal affairs of the trade union in question.” 306th Rep., Case No. 1885 (1997), para. 140; see Digest, para. 161.

    The complaint highlights the recent really atrocious ruling by the NLRB on voluntary union recognition, which I discussed when the ruling came out last month. In the complaint, the Dana decision is viewed as coming….:

….at the very moment when its own election procedures have become ineffective in achieving freedom of association, the Board has handicapped workers’ only viable alternative by “allowing a minority of employees to hijack the bargaining process just as it is getting underway”:

    Anyway, this is worth reading.