With so many conflicting laws, whether in the U.S. or between various countries, unions are going global to win labor disputes in the U.S.  For example, IG Metall, the German union representing workers at Mercedes and Volkswagen, was heavily involved in applying pressure to assist the UAW in attempting to organize Mercedes in Alabama and Volkswagen (VW) in Tennessee.  The UAW lost in Alabama, but is trying again.  Are international boundaries being blurred when it comes to unionization?

The UAW’s attempt to organize the VW plant in Chattanooga has gone through a number of very public iterations.  At first, VW management was supportive of trying to organize the plant, going as far as to create an Employee Council similar to the European model to engage employees.  That approach was neither supported by an election nor the U.S. courts.  VW management has since taken the opposite approach in 2016 with a changeover in management and has moved toward fighting off any UAW efforts to organize.

However, using a micro union approach, the UAW was able to organize 160 maintenance workers by a vote of 108-48.  The remaining 1,500 VW workers have not voted for or against a union.  A micro union approach is to organize a group of workers while excluding some of the targeted group's co-workers who are part of a single, functionally-integrated production process.  In the Volkswagen case these employees overwhelming share a community of interest with the organizing employees, but would have likely voted against the UAW.  The National Labor Relations Board (NLRB) allowed the petition.

Now comes a new approach to union relations, using international law conflicts to win labor disputes. 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.

Taking a novel approach, the UFCW used the NAFTA treaty as a mechanism to win its demands.  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.

But that UFCW was not going to rest on those laurels.  The union then filed a complaint with the U.S. State Department under OECD Guidelines for Multinational Enterprises. The complaint alleged that El Super engaged in an “aggressive, multi-year campaign of coercion” against workers and interfered with workers’ rights to freedom of association by threatening, interrogating, spying on, disciplining and discharging employees because of union activities.

In July 2016 the DOL stated that the union failed to prove its allegations against the Mexican Government.  The State Department did the same with the OECD guidelines.  However, both expressed their dismay with the actions of El Super. 

This takes the issue of labor disputes to a new level.  Unions will now state that the issues involved are international in nature and need international solutions.  This approach may become the norm.  In the future, the DOL and State Department might intervene in a truly local dispute. 

The actions of these agencies underscore the fact that for the past eight years, the Obama administration has not taken a neutral stance in labor-management relations, tilting primarily to the labor side.  As the NLRB has made clear, all employees are entitled to union type representation, even if it’s the government representing the workers.  Therefore, it is important for all organizations, especially those with international operations or with an overseas parent, to use local counsel to document all local laws, treaties, and corporate good citizenship efforts to ensure that local disputes stay local, and any curve balls thrown are handled appropriately. 

Sources: DLA Piper LLP 9/9/16, Littler 9/9/15, New York Times 4/25/16, National Legal and Policy Center 11/24/16