crossposted from unbossed
Last October, unbossed carried the story that a complaint had been filed with the International Labor Organisation against North Carolina for violating international law. The ILO has now issued its report.
The bottom line is a stunning victory for the unions and a huge rebuke to the US government's position, one that finds it speaking out of both sides of its mouth. Something that did not escape the notice of the ILO.
Note: this is a long, long post in which I try to summarize a long and detailed report and give the essence of the party positions and the ILO findings. I have tried to sign post key parts. I realize this may try the patience of most readers, but it is worth at least scrolling to the bottom and perhaps scanning the rest.
To refresh your recollection that unbossed story said:
On October 17, a group of Canadian, Mexican, and US unions have filed a complaint charging that North Carolina has violated international law by denying public sector workers the right to collective bargaining. It says the denial of these rights:
Seriously Diminishes Labor Standards, including the Right to Freely Associate and to Organize and to Bargain Collectively, in Violation of the NAALC, Conventions of the International Labor Organization (ILO) and Principles of International Law Incorporated in Various International Instruments.
The ILO decision sets out details about the North Carolina case, including the parties' charges and responses, as well as the ILO's findings, starting at p.213. This is a very large pdf file with lots of reports, so do not download unless you have a fast connection, etc etc. ILO report link
The US has not ratified the ILO Conventions at issue.
Most countries in the world have ratified the ILO Conventions for Freedom of Association and to organise and engage in collective bargaining.
The report acknowledges that the US has not ratified the key ILO conventions that were alleged to have been violated:
The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).
The report then lays out the complaint allegations. You can find them in last October's unbossed story on the filing. This will help those of you without a fast connection.
A Summary of the Complaint Allegations
The complaint alleged a range of problems created by North Carolina's prohibition of public sector collective bargaining. I will include this one paragraph to give you a sense of the complaints made and will also break it and other quotes into shorter paragraphs for easier reading.
948. In the first place, the complainants allege that the Government’s failure to ensure compliance with the fundamental principles of freedom of association and the right to collectively bargain has resulted in grievous working conditions and promoted race and sex discrimination in the workplace.
The failure to comply with Conventions Nos. 87, 98 and 151 has stripped public sector workers in North Carolina of their basic human rights of free association and has translated into miserable working conditions for many public sector workers in North Carolina, who report health and safety violations in their workplace, unconscionable wages, unreasonable and unsafe hours of work, extreme understaffing, unreasonable forced overtime, favouritism, and disrespectful treatment from superiors, amongst other complaints.
All of these problems are compounded by inconsistent grievance procedures devoid of any notion of due process. Moreover, all of these complaints could be addressed through the collective bargaining process.
However, the prohibition of collective bargaining agreements in North Carolina has prevented public sector workers from experiencing the basic dignity associated with having a say in establishing one’s conditions of work, as well as the increased authority derived from speaking with a collective voice.
But perhaps the most disturbing result of North Carolina’s long-term ban on collective bargaining in the public sector is the unmistakable prevalence of widespread race and sex discrimination. Employees complain of unequal treatment for racial minorities and women in hiring, promotions, discharges and wage rates.
The State’s own comprehensive reports determined that these complaints are accurate. For example, African Americans are disproportionately under-represented in the state government workforce, especially in management and professional positions. Not surprisingly, African Americans and women are over-represented in the lowest paying jobs and have largely been unable to break through the State’s "glass ceiling". Public sector employees also report widespread racial and sexual harassment.
The ILO statement of the complaint adds:
949. In essence, according to the complainants, NCGS §95-98 acts as a state-mandated impediment to eliminating race and sex discrimination. Collective bargaining would provide public sector employees numerous tools to counter the continuing racism and sexism in their workplaces. From establishing truly objective criteria for employment decisions to developing workable and anti-harassment mechanisms, the collective bargaining process would offer public sector workers a voice in changing the current system to eradicate the widespread institutional racism and sexism.
Finally the report summarizes the many pages that set out the complaints.
You should note that the ILO refers to US obligations as a member of the ILO rather than as a signatory to the ILO conventions involved here. This is highly significant.
Even conventions that have not been ratified by the United States may be used as evidence of international norms. In 1998, the ILO made its fundamental conventions binding even on member countries that had not ratified them. The ILO Declaration on Fundamental Principles and Rights at Work § 2 says:
that all Members, even if they have not ratified the Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely:
(a) freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
Here is the ILO summation of the complaint:
956. In conclusion, the complainants state that by permitting the State of North Carolina to ban public sector workers from entering collective bargaining agreements, the Government of the United States has failed to uphold its most basic obligations as a member of the ILO.
The refusal to respect North Carolina public sector workers’ right to bargain collectively and freedom of association has resulted in serious workplace abuses, including pervasive discrimination. They therefore requested that the Committee on Freedom of Association utilize all available means to ensure that the United States Government takes immediate and effective action to comply with Conventions Nos. 87, 98 and 151, so that public sector workers in North Carolina can exercise their rights of free association and collective bargaining.
The US Government Response
The US government says that the US has not signed onto these ILO conventions and is therefore not bound by them. It also says that the complaint has no merit because public sector workers of North Carolina may form unions.
The paragraph in which the US makes this second claim is a must-quote, because it is a ringing endorsement of the right of all public sector employees in the US to form unions. It says that this right receives strong and clear protection under the US Constitution's 1st Amendment right to freedom of association. In addition, it asserts that if laws of North Carolina or any state violate that right, they are null and void!
This is an amazing endorsement of the right to organize and engage in collective bargaining. If only our federal government believed what they said to the ILO and acted on those statements.
960. In the first place, the Government emphasizes that public employees in North Carolina have the right to form and join unions. Public sector employees perform a wide variety of jobs: blue-collar and white-collar jobs, jobs in law enforcement and defence, technical and professional jobs and many others. What sets public sector employees apart from their private sector counterparts is, of course, the special character of their employer.
With respect to public employment, the employer is the whole people, who speak by means of the laws that are enacted by their representatives. Despite the special nature of public sector workers in the United States, individuals employed at all levels of the Government have the right to form and join unions because the First Amendment to the US Constitution guarantees the associational rights of all persons. This fundamental principle is well settled in US jurisprudence and has specifically been recognized in North Carolina, as the complainants concede. Thus, in Atkins v. City of Charlotte, a three-judge panel of federal district court judges held that the US Constitution’s guarantee of freedom of association protects the rights of North Carolina public employees to form and join labour unions.
Because the US Constitution’s provisions supersede conflicting state laws by virtue of the supremacy clause of article VI, North Carolina is not free to abridge this fundamental right by enacting contrary state legislation. As a practical matter, this means that the North Carolina law cannot and does not impede the rights of state and local government employees to form and join unions or employee associations. Thus, US law and practice with respect to North Carolina is completely consistent with the principles underlying Convention No.7.
The ILO's Findings
The ILO's findings start on p.224. Here is a summary of its findings:
- It first states that whether or not the US has signed the ILO Conventions protecting freedom of association and collective bargaining, the ILO has the power to render a decision in this case.
- In Par.989 the ILO concludes: "To sum up, all public service workers, with the sole possible exception of the armed forces and the police and public servants directly engaged in the administration of the State, should enjoy collectivebargaining rights"
- In Par.992 the ILO concluded that collective bargaining should be permitted over all subjects except those that clearly concern "primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation".
One paragraph deserves to be quoted in whole:
993. With regard to the Government’s arguments that negotiations can validly be banned in the public sector because the employer of public sector employees is the whole people and public sector employees may address through the legislative process the issues that collective bargaining typically addresses, the Committee emphasizes that it is the government authorities that exercise the functions of employer of public sector employees and that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers, including the government in its quality of employer, or employers’ and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements. Legislative intervention is not a substitute for free and voluntary negotiations over the terms and conditions of employment of public employees who are not engaged in the administration of the State.
There are many more findings and then the ILO makes its ultimate conclusion:
The Committee’s recommendation on p.230:
999. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
The Committee requests the Government to promote the establishment of a collective bargaining framework in the public sector in North Carolina – with the participation of representatives of the state and local administration and public employees’ trade unions, and the technical assistance of the Office if so desired – and to take steps aimed at bringing the state legislation, in particular, through the repeal of NCGS §95-98, into conformity with freedom of association principles, thus ensuring effective recognition of the right of collective bargaining throughout the country’s territory. The Committee requests to be kept informed of developments in this respect.
So, to summarize, the US unions now have a finding that the State of North Carolina violates international law by not giving N.C. public sector workers the right to organise.
Quite a victory. Now if only it can have an effect here . . .
For more on reactions to the ILO Decision, read this analysis.