A one-two punch for US labour

A regulatory rollback spells bad news for America’s unions

Sally Tyler

Government and governance, Trade and industry, Social policy | Australia, The World

29 June 2017

Just as the Trump Administration winds back regulation on union-busting by employers, the UN releases a special report criticising US labour law through a human rights lens, writes Sally Tyler.

The nascent Trump Administration’s ongoing relationship with Congress continues to play out like instalments of the Keystone Cops serial, with Republican leaders frantically trying to wrangle members to vote for a health care bill they have never seen, as the barometer of public support for legislation to nullify Obamacare declines by the day. While much attention has been paid to the rancorous legislative struggle and Trump’s abject failure to fulfil any campaign promises during the critical first-100-days kick-start to his administration, it has gone almost unnoticed that his executive agencies (now that he finally amassed a full Cabinet in May – the slowest start on record) have begun to quietly dismantle Obama era policy.

Such was the case earlier this month when the Department of Labour announced it had initiated reversal of the “persuader rule,” an Obama-era regulation meant to check employers’ union-busting activities, by requiring greater transparency around consultants hired to advise them on how to keep unions out of their workplaces.

The anti-union consulting business has become a multi-million industry in the US, and operates largely in the shadows, because prior to the “persuader rule,” employers only had to publicly disclose the use of such consultants if they were being engaged to speak directly to employees.

Most consultants are engaged to write anti-union scripts for employers, who then use the scripts at captive audience staff meetings, which employees cannot avoid, and to which unions cannot gain access. Such meetings are prevalent in the private sector, where unionisation has reached a post-World War II low of 6.4 per cent.

Proponents of the rule argued it was only fair to allow workers to understand the entities behind the anti-union messages being delivered to them in the workplace, and that outcomes of elections for union representation might be different if workers knew that the heart-felt manifesto against unions delivered by their boss was merely a boilerplate template concocted by a corporate flack they had never met.

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The rule also brought about a balance in reporting, as unions were already required to report staff salaries and political contributions, giving workers a snapshot of their operations. Now that Trump has taken steps to rescind the rule, the burden of disclosure will be entirely on the part of unions, with employers’ anti-union efforts remaining nearly invisible.

During the recent UN Human Rights Council meeting in Geneva, a new report was issued by the UN Special Rapporteur on the rights to freedom of assembly and association in the US. One focus of the report, not likely to garner headlines in the country, is the anaemic status of American labour law as a reflection of weakened human rights policy. The rapporteur notes that the belief in the absolute solvency of free market economic principles, coupled with intolerance toward competing ideas, undermines human rights: “Nowhere is this free market fundamentalist approach more evident than in the US approach to labour rights, which overwhelmingly favours the wellbeing of employers over workers.”

The report goes on to detail lax enforcement for employer violations such as wage theft, debt slavery, and sexual harassment. The rapporteur finds the paltry resources dedicated to enforcement of crimes against workers to be particularly ironic when contrasted with the robust funding for law enforcement of other crimes. He also finds it noteworthy that some states pro-actively advertise their anti-union status to attract foreign manufacturers. He says this lays the foundation for many European firms to “aggressively pursue anti-union activities in the US that they would never contemplate in Europe.”

Similarly, Australia’s Fair Work Act has been criticised for restricting freedom of association, particularly as the right to strike (industrial action) is only protected during the process of bargaining a contract. That narrow period leaves ample room for employer misconduct, with little by the way of substantive recourse for workers.

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Because of its restriction on the right to strike, Australian Council of Trade Unions leader Sally McManus has characterised the act as an “unjust law.”

A report such as the UN’s would have likely had a more resonant impact with a different American president. Imagine how Hillary Clinton, who famously declared “Women’s rights are human rights,” at the 1995 World Conference on Women in Beijing, would have responded to criticism that the US is not living up to its own ideals.

Having invited the report, under Obama, the US government is technically obligated to reply. But with Trump, one imagines that the response will probably consist of either a verbal shrug of the “so what?” variety, or a bellicose across-the-board denial which fails to address specifics. Like his man-crush Putin, the US president has widely declared that the domestic affairs of other nations are their own business, so one can imagine that this report may not make his morning briefings.

Yet, perhaps the report will eventually find readers in the US, which will help stoke calls for more unionisation, even as Trump policies create obstacles to the process, and global union rates continue to fall.

The overwhelming majority of people on the planet must work for their survival, and give up some degree of liberty in being told by an employer how they must spend their time on the job. But workers do not give up all their rights when they cross the workplace threshold. Framing labour rights as human rights, both interdependent and indivisible, as the UN’s Office of the High Commissioner on Human Rights notes, may help build understanding of their intrinsic value, and the importance of protecting them.

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