Think Global, Act Local - Jackson Lewis

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THINK GLOBAL, ACT LOCALJackson Lewis LLPpublic availability and communication to all personnel, business partners andrelevant parties; andincorporation generally in operational policies and procedures.The statement is intended for application in “whatever means an enterprise employs to set outpublicly its responsibilities, commitments, and expectations.” 9 It is meant to be communicatedactively to business partners and others with whom the enterprise contracts. In short, thePrinciples call for the policy statement to be “embedded from the top of the business enterprisethrough all its functions.” 10Another operational objective of the Guiding Principles is the enterprise’s obligation to carry outhuman rights due diligence to “identify, prevent, mitigate and account for” adverse humanrights impacts. 11 The process is intended to include “assessing actual and potential human rightsimpacts, integrating and acting upon the findings, tracking responses and communicating howimpacts are addressed.” 12 Here again, the parameters are broad, including due diligence toassess and address not only actual but potential adverse human rights impacts, beginning withthe initial stages of a business relationship or activity, and extending to suppliers, clients andothers in the enterprise’s value chain.In-house counsel of transnational companies should pay close attention to the letter and spiritof the standards embodied in what Professor Charnovitz has coined the “US International LaborRelations Act” and the UN Guiding Principles for Businesses and Human Rights, authored byProfessor Ruggie, when assessing their labor relations strategy and decisions.The existence of an international labor relations standard is not speculation. As a member, theUnited States has implicitly agreed to abide by the International Labour Organization’sstandards, even though it has not ratified the conventions on freedom of association and theright to organize and to bargain collectively. As such, domestic enterprises are not exempt fromthe ILO’s foundational principles specified in the Declaration of Fundamental Principles andRights at Work. Furthermore, the U.N. Guiding Principles specifically incorporate the ILO’sDeclaration, as do the FTAs between the United States and Peru, Colombia, Panama and SouthKorea, as noted above.The global reach of an international labor relations standard is already evident. Majortransnational corporations have adapted their corporate responsibility statements to reflect thespirit of the ILO and the Guiding Principles. At risk of reputational injury by not doing so,transnationals are becoming more aggressive in demanding that their vendors, suppliernetworks and other business partners follow suit. Caught between the proverbial rock and ahard place, your company could be compelled to state publicly its commitment to high laborstandards, and by so doing, provide the basis for criticism if it cannot fulfill that promise.Further, if a company makes assertions which are contrary to at will employment principles,these statements could conceivably be used against the company in litigation.P A G E | 4
THINK GLOBAL, ACT LOCALJackson Lewis LLPFrom responsibility statements to policies and practices, in-house counsel will likely come underincreasing pressure to ensure their companies comply with the labor relations imperatives ofthe ILO and Guiding Principles. In addition, labor unions have amassed tremendous leverage intheir efforts to organize domestic operations of transnational enterprises. Organized labor’sobjectives of attaining neutrality agreements, card check recognition, unfettered access toemployees and speedy first contracts find support in the international standards and fromforeign parent corporations accustomed to dealing with greater worker and union rights inbusiness operations.Although the subject of transnational labor organizing is not specifically addressed in the ILOconventions or the free trade agreements cited by Professor Charnovitz as forming part of the“ILRA,” a number of ongoing union organizing campaigns are using international labor relationsstandards as a key piece of their corporate campaign strategy. US subsidiaries of foreign parentcorporations in a range of businesses — from retail to food distribution to telecommunications— are under pressure from various alliances of domestic and foreign labor unions protestingmanagement opposition to organizing as a violation of those standards.One example is the ongoing effort by the United Food and Commercial Workers Union (UFCW)to organize US workers of a grocery store chain owned by a parent in the United Kingdom. TheUS stores’ managers have been accused of refusing to meet with the union to discussrepresenting their employees. The UFCW uses the parent’s corporate policy statements,reflecting its founding member status of the Ethical Trading Initiative, that specifically pledgeallegiance to the ILO’s conventions on freedom of association and the right to organize and tocollective bargaining to indict US management for refusing to meet with the union. Augmentingits US campaign through social media and online channels, the union recently began usinghighway billboards in areas of California where the corporate campaign is focused.In 2008, the UFCW launched a campaign in the United Kingdom to put public pressure on thecompany to conform its labor relations policies “at home” and in the United States. Announcingthe campaign in Britain, the UFCW said, “The *report+ is a damning indictment of how *thecompany] operates different principles at home and abroad. The report also highlights whatUFCW believes are stark contrasts between what *the company+ says and what it does.” 13In the telecommunications industry, another ongoing corporate campaign has pitted the foreignparent corporation against the efforts of US management lawfully to defend against organizingefforts by the Communications Workers of America.These examples illustrate some of the ways that international labor relations standards areshaping the growth and conduct of transnational enterprises. They go beyond speculation as tothe weight of influence the principles of the ILO and UN are having in the development of aglobal standard for cross-border human rights and labor relations.P A G E | 5
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