V. Freedom of Association Under International and US Law

Wal-Mart’s efforts to prevent workers from exercising their right to organize began early in the company’s history.  In 1970, shortly after Wal-Mart opened a store in Mexico, Missouri, workers reportedly began discussing union formation.  Wal-Mart responded by firing a worker, Connie Kreyling, for talking about the union and by hiring John Tate, who has been described as “a professional union-buster” who “had defeated hundreds of organizing efforts around the country.”262  Tate met with the workers and reportedly “gave them a fire-and-brimstone view of what they could expect if they voted the union in.”  Efforts to organize quickly faded.  Wal-Mart turned to Tate again and again in the following years to help quash additional worker organizing attempts.  Two years after the Mexico, Missouri, organizing began, the National Labor Relations Board ruled Kreyling’s firing illegal, over Wal-Mart’s objections.263

Today, over thirty-five years later, Wal-Mart continues to take advantage of weak US labor laws and inadequate labor law enforcement that fall far short of international standards.  Workers have attempted to form unions, but none of the roughly 1.3 million workers at Wal-Mart’s 3,856 facilities across the United States is a union member.  Instead, Wal-Mart’s sophisticated tactics to keep unions out of its stores have prevented Wal-Mart workers from freely choosing whether to organize, in violation of their internationally-protected right to freedom of association. 

Wal-Mart has so successfully exploited the shortcomings in US labor law and its enforcement that, in recent years, there has been a sharp decline in attempts by Wal-Mart workers to organize using the NLRB-sanctioned process.  As Wal-Mart noted in a letter to Human Rights Watch, “Since January 2004, only two union election petitions have been filed by any union seeking to represent Wal-Mart Associates in the United States.”264  Neither resulted in union representation.265  The executive vice president and organizing director of the United Food and Commercial Workers (UFCW) International Union explained the drop in union organizing to Human Rights Watch: “Our goal is to improve the lives of Wal-Mart associates, and right now we just don't believe that using the NLRB is an effective way to do that.  We’re not doing that anymore.  There are no teeth in the laws, . . . so it doesn’t make sense to jeopardize workers. . . .  Even when we win with the NLRB, we lose.”266   

Freedom of Association Under International Law

Workers’ right to organize is well established under international human rights law.  The Universal Declaration of Human Rights (UDHR) sets out that “[e]veryone has the right to form and to join trade unions for the protection of his interests.”267  This is further articulated in the International Covenant on Civil and Political Rights (ICCPR), ratified by and legally binding on the United States, which states that “everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.”268  The International Covenant on Economic, Social and Cultural Rights (ICESCR), which the United States has signed but not ratified, similarly recognizes “[t]he right of everyone to form trade unions and join the trade union of his choice.”269  As a party to the ICCPR, the United States has made a commitment to “take the necessary steps . . . to adopt such legislative or other measures as may be necessary to give effect to” the right to form and join trade unions and to ensure that any person whose right to organize is violated “shall have an effective remedy.”270  

These instruments establish the right to freedom of association, and International Labour Organization conventions, recommendations, and jurisprudence flesh it out.  The ILO Declaration on Fundamental Principles and Rights at Work (ILO Declaration) lists freedom of association as one of the “fundamental rights,” which all ILO members have an obligation to protect.271  ILO Convention 87 concerning Freedom of Association and Protection of the Right to Organise and ILO Convention 98 concerning the Right to Organise and Collective Bargaining elaborate on this right. 

The United States has not ratified either of these core conventions, yet as an ILO member, the country has a duty under the ILO Declaration to abide by their terms.  The ILO Declaration states 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.”272  The ILO Committee on Freedom of Association, which examines complaints from workers’ and employers’ organizations against ILO members and whose jurisdiction the United States has recognized, has stated, “When a State decides to become a Member of the Organization, it accepts the fundamental principles embodied in the Constitution and the Declaration of Philadelphia, including the principles of freedom of association.”273  In 1975, the committee also noted that ILO members, by virtue of their membership, are “bound to respect a certain number of general rules which have been established for the common good. . . .  Among these principles, freedom of association has become a customary rule above the Conventions.”274 

Under ILO Convention 87, “Workers . . . without distinction whatsoever, shall have the right to establish and . . . to join organizations of their own choosing without previous authorization.”275  ILO Convention 98 further explains:

Workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment. . . .  Such protection shall apply more particularly in respect of acts calculated to . . . (b) [c]ause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities.276

The convention elaborates, providing, “Workers’ . . . organizations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration.”277  The ILO Committee of Freedom of Association has repeatedly underscored the importance of adequate laws banning such interference and adequate penalties and mechanisms to ensure compliance.  The committee has noted:

The existence of legislative provisions prohibiting acts of interference on the part of the authorities, or by organizations of workers and employers in each other's affairs, is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice. . . .  Legislation must make express provision for appeals and establish sufficiently dissuasive sanctions against acts of interference by employers against workers and workers' organizations to ensure the practical application of Article 2 of Convention No. 98.278 

There is no bright line test, however, for determining when employer anti-union campaigning is impermissible interference.  Whether employer tactics to defeat union organizing cross the line between permissible employer campaigning and coercive interference usually requires a case-by-case analysis considering the individual circumstances at issue.  The ILO Committee of Experts on the Application of Conventions and Recommendations (ILO Committee of Experts), whose responsibilities include preparing annual reports on particular themes covered by the ILO’s conventions, has noted in its report on freedom of association and collective bargaining that “[t]he specific forms of such acts of interference likely to impair the guarantees established by the Convention are very varied in nature, and it would be futile to attempt to draw up an exhaustive list.”279  The ILO Committee on Freedom of Association has addressed the question by developing a non-exhaustive list of banned employer tactics that includes: “artificial promotions of workers” to “undermine workers’ organizations”; offering “bribes to union members to encourage their withdrawal from the union”; and “hiring of workers to break a strike in a sector which cannot be regarded as an essential sector in the strict sense of the term, and hence one in which strikes might be forbidden.”280      

Corporate Responsibility

States have the primary responsibility for promoting and protecting workers’ rights under international law.  Nonetheless, as reflected in the United Nations (UN) Global Compact,281 the Organization for Economic Cooperation and Development Guidelines for Multinational Enterprises (OECD Guidelines),282 and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy (ILO Tripartite Declaration of Principles),283 there is an international consensus that companies also have a duty to uphold workers’ human rights.  The precise scope of that duty, however, and its standing under international law is still the subject of debate.

There is currently no internationally-recognized, comprehensive set of standards that addresses businesses’ human rights responsibilities.284  In the absence of much-needed global standards and without adequate national laws or other domestic measures requiring businesses to comply with human rights norms, companies can pick and choose their own human rights standards.  Some participate in voluntary initiatives, often developed for specific sectors, and others adopt their own workplace codes of conduct.  These codes and initiatives, however, can have divergent standards, vary widely in their reach and quality, often fall short of international law, and may have inadequate monitoring that fails to ensure compliance.

Since 1992, for example, Wal-Mart has had in place a code of conduct, the “Standards for Suppliers,” which sets forth workers’ rights standards with which it expects its suppliers to comply.  Since 2005, the code has also included a standard on freedom of association and collective bargaining that states that suppliers must “respect the rights of employees regarding their decision of whether to associate or not to associate with any group, as long as such groups are legal in their own country” and “not interfere with, obstruct or prevent such legitimate activities.”285  The standards, however, do not apply to US Wal-Mart stores, and as discussed in this report, the company systematically undermines the rights of its US workers to associate. 

When countries like the United States fail to adequately protect labor rights in their domestic laws, fail to sanction labor law violations with penalties sufficient to guarantee respect for workers’ rights, and fail even to effectively enforce their inadequate labor laws, they breach their duty under international law to protect workers’ rights.  Such government failure opens the door to companies like Wal-Mart to contravene their own obligation to respect workers’ human rights and allows such companies to commit labor rights violations with impunity or with repercussions so negligible that the penalties fail to dissuade them from violating those rights. 

Freedom of Association Under US Labor Law: An Overview

I felt that stuff that was done wasn’t right, and Wal-Mart should have had to pay a fine because it just wasn’t right.  They don’t treat people right, and it’s just not fair, and they get away with it.  The labor laws suck.  They really do.

--Georgia Graham, former Aiken, South Carolina, Wal-Mart worker.286

When we went to court, we felt like we put a lot on the line, our jobs, our reputations, everything on the line—people don’t like that kind of stuff, but all you’re doing is trying to stick up for yourself.  And I felt like they [Wal-Mart] just got a slap on the wrist. . . .  I feel like the system failed us.

—“Pat Quinn,” Aiken, South Carolina, Wal-Mart worker speaking on condition of anonymity.287

The US labor laws governing workers at Wal-Mart facilities throughout the United States are referred to collectively as the National Labor Relations Act (NLRA).  The NLRA is comprised of the Wagner Act, adopted in 1935, and subsequent amendments to the act: the Taft-Hartley Act of 1947; the Landrum-Griffin Act of 1959; and the 1974 “Healthcare Amendments,” which made the NLRA applicable to employees of nonprofit healthcare institutions.288  The NLRA asserts the right of workers “to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  The law also recognizes the right of workers “to refrain from any or all of such activities except to the extent that such a right may be affected by an agreement requiring membership in a labor organization as a condition of employment.”289 

The NLRA sets forth five employer actions known as “unfair labor practices” that violate these rights.  The act makes it unlawful for an employer to: 1) “interfere with, restrain, or coerce employees in the exercise of” concerted activity, including forming a union; 2) “dominate or interfere with the formation or administration of any labor organization or contribute financial or other support to it”; 3) discriminate “in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization”; 4) “discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act”; and 5) “refuse to bargain collectively with the representatives of his employees.”290

If workers believe that an employer has committed an unfair labor practice, they or their representatives may bring charges before a regional office of the National Labor Relations Board’s general counsel, charged with enforcing the NLRA.  The general counsel will investigate the charges, and if he or she determines that they have merit, will issue a complaint against the employer for violating the NLRA.  If no settlement is reached between the parties, the general counsel, acting as prosecutor, will argue the case against the employer before an NLRB administrative law judge, who will issue a decision based on the evidence, testimony, and briefs.  Either party may appeal the judge’s decision to the five-member NLRB in Washington, DC.  The Board will adopt, reverse, or modify the ALJ’s ruling.  The Board’s decision, in turn, may be appealed to a US federal circuit court of appeals and, ultimately, to the US Supreme Court.291    

The remedy for violating the NLRA, however, cannot be punitive.  The US Supreme Court has held:

[The NLRA] authorizes the Board, when it has found the employer guilty of unfair labor practices, to require him to desist from such practices “and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this Act (chapter).”  We think that this authority to order affirmative action does not go so far as to confer a punitive jurisdiction enabling the Board to inflict upon the employer any penalty it may choose because he is engaged in unfair labor practices.292

Therefore, as Human Rights Watch has noted previously, the NLRB cannot sanction an employer for acting illegally.  Instead, “[i]t can only order a ‘make-whole’ remedy restoring the status quo ante as the remedy for unfair labor practices.”293  

As a result, if an employer fires a worker for organizing, a fact which often takes years of litigation to establish, the employer must simply reinstate the worker with back pay, minus the income earned in the interim—a remedy few workers even accept, having found new jobs while awaiting legal rulings.  If an employer commits other unlawful anti-union discrimination short of dismissal, or interferes with or coerces workers attempting to organize, the employer is generally only ordered to cease and desist from the illegal activities and post a notice in the affected facility promising not to repeat the unlawful conduct.  Such a notice, the most frequently ordered remedy, typically states that the NLRB has found that the employer violated US labor law, summarizes workers’ rights under the law, and explicitly sets forth the employer’s promise to refrain from each unfair labor practice of which it was found guilty.  Such weak remedies, however, are small prices that many employers, especially an employer with the size and economic power of Wal-Mart, are more than willing to pay for defeating workers’ organizing efforts with lawbreaking strategies that violate workers’ right to freedom of association. 

Employer Anti-Union Campaigns

Although the NLRA recognizes workers’ right to organize, changes to the law and to NLRB jurisprudence have, over time, eroded the protections afforded workers attempting to exercise this right.  In the years shortly after the Wagner Act was enacted, NLRB decisions strongly protected workers’ right to freedom of association.  Had those Board rulings endured, the NLRB’s interpretation of US labor law would be more in line with international standards.  The tide has gradually turned, however, and NLRB rulings have increasingly strayed from international norms, making it increasingly difficult for workers in the United States to exercise their right to freedom of association.

The NLRB originally interpreted section 9 of the Wagner Act as requiring an employer to recognize a union that petitioned for recognition with the support of the majority of workers in a proposed bargaining unit.294  An employer was not allowed to file an election petition challenging that demand for union recognition.295  The NLRB also initially held that the NLRA banned any anti-union employer speeches and literature.  The Board reasoned that the economic and power relationship between the employer and the worker made such anti-union statements inherently coercive and “intrusive upon the employee’s free choice.”296  Following the same reasoning, the Board found in 1946 that an employer also acted illegally when it held captive audience meetings for workers on work time to speak against the union.297  These rulings largely banned coercive employer interference that undermines workers’ right to choose freely whether to form a union. 

In 1947, however, largely reacting to the Board’s rulings, the US Congress passed the Taft-Hartley Act.  The act amended section 9 of the NLRA to explicitly permit an employer to file an election petition in response to a union’s demand for recognition and amended section 8 to establish an “employer free speech” clause that allowed employers to campaign aggressively against union formation as long as the tactics adopted were not coercive.298  Explaining the scope of the new employer free speech clause, the Supreme Court held that “an employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘threat of reprisal or force or promise of benefit.’  He may even make a prediction as to the precise effects he believes union formation will have on his company.”299  Employers often exploit this distinction between illegally “threatening” and legally “predicting” workplace closures, firings, wage and benefit cuts, and other dire consequences of organizing.  The difference is not always apparent to workers.

In the years immediately following the Taft-Hartley reforms, the NLRB took steps to strike an equitable balance between employers’ exercise of their free speech right, on the one hand, and workers’ right to organize free from coercive employer interference, on the other.  The Board clarified that although employers now had the right to engage in anti-union campaigning, union representatives had a corresponding right to respond.  In 1952, a US federal circuit court of appeals upheld the Board’s finding that when an employer holds anti-union captive audience meetings in the workplace, the employer must also grant a union’s request to hold similar meetings.  The court found that failure to do so violated workers’ right “to hear both sides of the story under circumstances which reasonably approximate equality.”300 

Two years later, the Board overturned this ruling, holding that employers are not required to grant union representatives the same opportunity as employers to communicate with workers in the workplace.301  The Supreme Court has upheld this position.302  In addition, the Board has also found that employers may limit the rights of non-employees to campaign and distribute literature on company property.  Citing Supreme Court precedent, the NLRB found in an unfair labor practice case against Wal-Mart that “individuals who do not work regularly and exclusively on the employer's property, such as non-employee union organizers, may be treated as trespassers, and are entitled to access to the premises only if they have no reasonable non-trespassory means to communicate their message.”303

In Lechmere, Inc., v. NLRB, the US Supreme Court clarified that employer property rights are not “required to yield” whenever “non-trespassory access to employees may be cumbersome or less-than-ideally effective,” but instead, only where “the location of a plant and the living quarters of the . . . employees place the employees beyond the reach of reasonable union efforts to communicate with them.”  Examples of such cases include logging and mining camps, mountain resort hotels, and other facilities in which workers “by virtue of their employment, are isolated from the ordinary flow of information that characterizes our society.”  The Supreme Court noted that the “union's burden of establishing such isolation is . . . ‘a heavy one,’” which must be met by demonstrating “the existence of . . . ‘unique obstacles’ . . . that frustrated access to . . . employees.”  In doing so, the court found that workers in metropolitan areas, such as those in which most Wal-Mart facilities are located, are not “beyond the reach . . . of the union’s message,” as they are accessible through means such as “mailings, phone calls, and home visits.”304  As a result, in most cases, union organizers may lawfully be denied access to Wal-Mart facilities, as well as the sidewalks and surrounding parking areas.

Thus, US labor law has evolved over the years to the detriment of workers’ right to freedom of association.  The law has shifted from requiring employers to grant a demand for union recognition if made by a majority of workers to allowing employers to challenge that demand and force an NLRB election.  The law has moved from requiring employers to remain neutral in the face of union organizing to allowing them to campaign aggressively against union formation, deny union representatives the opportunity to respond to employer anti-union messages, and in most cases, bar union organizers from employer property. 

Many employers have taken advantage of this evolution in US labor law and vigorously embraced the practice of aggressive anti-union campaigning when organizing activity is detected at their facilities.305  In cases in which employers only learn of employee efforts to organize after a majority of workers request union recognition, employers regularly refuse the request and require the union to demonstrate majority support through an NLRB election.  This creates a period of at least several weeks, often longer, leading up to the NLRB election during which employers aggressively campaign to undermine union support.  Through small- and large-group meetings, which employees are ordered or strongly encouraged to attend, employers explain to the captive audience of workers why they oppose union formation, highlighting the negative consequences of organizing.  Employers convey their message through videos, PowerPoint presentations, and speeches by store managers and high-level company officials.  They do so secure in the knowledge that they can limit workers’ access to a contrary viewpoint.  Employers can forbid questions or comments from union supporters at such meetings, deny union representatives’ requests for equal time to meet with workers under similar circumstances, and ban union representatives from soliciting and distributing literature anywhere on their premises, even in non-work areas outside the workplace. 

Common employer tactics have emerged for conveying to workers during organizing campaigns the potentially dire consequences of union formation.  As noted above, many of these tactics are legal under US law, which gives employers wide latitude to campaign aggressively against workers’ organizing efforts, as long as employers do not make unlawful threats.306  One such tactic, frequently utilized by employers and particularly effective in instilling in workers the fear of job loss if they organize, involves reminding workers of US law on labor strikes.  Employers inform workers that if they form a union, the union may declare a strike and that if the strike is over economic issues, like wages or benefits, employers may permanently replace the striking workers, leaving them out of their jobs.307  

Delays in US Labor Law Enforcement

Delays in US labor law enforcement are endemic.308  The time between the filing of unfair labor practice charges and the issuance of a decision and order by the five-member Board in Washington, DC, is often years.  According to the fiscal year 2005 NLRB annual report, the median number of days that an unfair labor practice charge is pending before a regional NLRB office issues a complaint is ninety-five, roughly three months; between the filing of the charge and an NLRB administrative law judge decision, 348, almost a year; and between the filing of the charge and a Board decision, 1,232, almost three-and-a-half years.309  In addition, after the five-member Board issues its decision, either party can appeal to a US circuit court of appeals and, ultimately, the US Supreme Court, resulting in additional years of delay.

Although the NLRB has an important tool that it can use, at its discretion, to mitigate the adverse impact of these extensive delays on workers’ rights, the Board seldom uses that tool.  Under US labor law, if an NLRB regional director finds merit to certain serious charges of illegal employer conduct, the NLRB may petition a federal district court for a “10(j) injunction” to stop the employer from continuing the alleged unlawful activities while the case makes it way through the US labor law system.310  In contrast, in cases of serious charges of unfair labor practices against a union to which an NLRB regional director finds merit, the NLRB must petition a federal district court for a “10(l) injunction” to stop the union’s allegedly illegal behavior.311  Both these injunctions are designed to “insure that an unfair labor practice will not succeed because the Board takes too long to investigate and adjudicate the charge.”312  The NLRB rarely files 10(j) injunction petitions, however.313 

In three of the five case studies discussed in this report, unions filed unfair labor practice charges against Wal-Mart on behalf of workers.  The average number of months between the filing of the first charges and the ALJ decisions in those cases was roughly thirty-two, 2.66 years.  One decision was not appealed.  Another was appealed, but the appeal was withdrawn.  The other case is still pending before the five-member Board in Washington, DC, six years after the initial charges were filed.  

One result of the long delays is that the most common remedies ordered against employers for US labor law violations are largely ineffective and the status quo ante is rarely restored.  For example, workers fired for their union activity who are awarded their jobs back after years of litigation rarely want their old positions because they have found new jobs in the interim.  The anti-union dismissal, meanwhile, has already taken its toll on organizing activity, which in most cases is long dead by the time the remedy is ordered, undermined by the firing of a union supporter and the resulting fear instilled in other potential union sympathizers.  The posting of an employer notice, especially in cases against Wal-Mart and other employers with high employee turnover rates, is rarely even seen by those workers affected by the employer’s illegal acts.  A labor attorney who represented the UFCW in an NLRB case against Wal-Mart, explained:

You have employees who have their rights violated by several ULPs [unfair labor practices].  They don’t find out that it’s illegal or that there’s a commitment not to do it again ‘till a couple of years later.  At that point, it’s history.  The union organizing is over.  People have moved on, especially at Wal-Mart.  Wal-Mart has a very high turnover rate, which means that when the notice [is posted], it’s not really providing a remedy to the employees who were there at the time because many of them, especially at Wal-Mart, have moved on.314

A former worker at Wal-Mart’s East Tropicana Avenue, Las Vegas, Nevada, facility was unable to answer when Human Rights Watch asked her whether Wal-Mart complied with an NLRB administrative law judge order involving that store; she had left Wal-Mart before the decision was issued.315  She has not missed anything, however, as the case has been appealed and is still pending more than six years after the initial charges were filed.

US Law and International Standards

US labor law and practice, described above, fall far short of meeting international standards.  The enforcement delays and the weak sanctions available against employers who act unlawfully have created a labor law regime that does not come close to establishing “sufficiently dissuasive sanctions against acts of interference by employers against workers and workers’ organizations.”  In addition, even if labor laws were effectively and expeditiously enforced with strong penalties, workers’ right to organize in the United States would still be inadequately protected because US law permits certain employer conduct that undermines that right.

The failure of US labor law to guarantee workers the right to receive information from union representatives on company property—both through worker meetings that could respond to employer anti-union campaigning and literature distribution that could counter employer anti-union materials—violates international standards.  Existing law denies workers the balanced information necessary to make free and fully informed decisions regarding organizing.  In a case against the United States, the ILO Committee on Freedom of Association explained that the right to freedom of association includes workers’ right to receive information from trade union representatives in their workplaces and requested the United States “to guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionisation.”316

US labor law’s failure to ensure fair union elections can be more fully understood by analogy to political elections.  The goal in each case is to create an even playing field and guarantee that people can cast votes free from coercion.  The one-sided anti-union campaigning that US labor laws allow during organizing drives would rightly be seen as a travesty of minimum standards of electoral fairness in a political contest where all sides must have “equal opportunity to convey their messages to the electorate” to ensure “[t]he fair and free atmosphere needed for effective political campaigning.”317  It should be understood as manifestly unfair in workplace elections, as well. 

US labor law also contravenes international standards by allowing employers to permanently replace workers striking for economic reasons.  The ILO Committee on Freedom of Association has held that, in most cases, an employer’s hiring of replacements to continue normal operations while workers are on strike impermissibly interferes with and “constitutes a serious violation of freedom of association.”318  Specifically, in a case against the United States, the committee concluded:

The right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests.  The Committee considers that this basic right is not really guaranteed when a worker who exercises it legally runs the risk of seeing his or her job taken up permanently by another worker, just as legally.  The Committee considers that, if a strike is otherwise legal, the use of labour drawn from outside the undertaking to replace strikers for an indeterminate period entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.319

The committee urged the United States “to take into account that, if a strike is legal, recourse to the use of labour drawn from outside the undertaking to replace the strikers for an indeterminate period entails a risk of derogation from the right to strike, which may affect the free exercise of trade union rights.”320 

In addition, the NLRA further violates international norms by requiring the NLRB to petition for an injunction in cases of meritorious charges of serious illegal union conduct but allowing the NLRB to file such a petition at its discretion when the charges are against an employer.  Expressing concern about this disparate treatment of employer and union illegal activity under US law, the ILO Committee on Freedom of Association concluded:

As the Committee understands the Government's arguments, it is the disruptiveness of the activity and its potential impact on neutral third parties which warrant the existence of a “mandatory”—as opposed to permissive—relief.  This reasoning is quite understandable but the Committee considers that the same rationale could be applied conversely, to justify the extension of “mandatory” injunctions against employers in certain cases (for instance those unfair labour practices that hinder the freedom of association of employees), to prevent the alleged unlawful acts from accomplishing their purpose before administrative proceedings are completed, thus making administrative remedies illusory.  The Committee thus requests the Government to ensure that, within the context of the application of the NLRA, workers and employers will be treated on a fully equal basis, in particular with respect to unfair labour practices.321

As illustrated in this report, time and again, inadequate US labor laws and labor law enforcement have facilitated anti-union activity by Wal-Mart that violates workers’ internationally recognized right to freedom of association. 

262 Ortega, In Sam We Trust,pp. 87-89.

263 Ibid.,pp. 87-89, 93.

264 Letter from Tovar, October 5, 2006.

265 Ibid.

266 Human Rights Watch telephone interview with Bill McDonough, executive vice president and organizing director, UFCW International Union, Washington, DC, October 30, 2006.

267 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71, art. 23(4).

268 ICCPR, art. 22(1).

269 ICESCR, art. 8(1).

270 ICCPR, arts. 2(2), 3(a).

271 International Labour Conference, ILO Declaration.  

272 International Labour Conference, ILO Declaration.  

273 ILO Committee on Freedom of Association, Digest of Decisions: Fundamental obligations of member States in respect of human and trade union rights (Procedure in respect of the Committee on Freedom of Association and the social partners: Function of the ILO and mandate of the Committee on Freedom of Association), 1996, para. 10. 

The ILO Committee on Freedom of Association reviews the complaints, all of which must allege violation of the right to freedom of association, and makes determinations based on the facts and applicable legal standards and recommends measures to resolve the disputes.

274 ILO Committee on Freedom of Association, Fact-Finding and Conciliation Commission Report: Chile, 1975, para. 466.

275 ILO Convention No. 87 concerning Freedom of Association and Protection of the Right to Organise, adopted July 9, 1948, 68 U.N.T.S. 17, entered into force July 4, 1950, art. 2.    

276 ILO Convention No. 98 concerning the Right to Organise and Collective Bargaining, adopted July 1, 1949, 96 U.N.T.S. 257, entered into force July 18, 1951, art. 1. 

277 Ibid., art. 2(1).

278 ILO Committee on Freedom of Association, Digest of Decisions: Fundamental obligations of member States in respect of human and trade union rights (Procedure in respect of the Committee on Freedom of Association and the social partners: Function of the ILO and mandate of the Committee on Freedom of Association), 1996, paras 763-64.

279 International Labour Conference, 1994, Freedom of association and collective bargaining: Protection against acts of interference, Report of the Committee of Experts on the Application of Conventions and Recommendations, 81st Session, Geneva, 1994, Report III (Part 4B), para. 231.  The ILO Committee of Experts is composed of a group of independent experts.  Its responsibilities also include reviewing reports submitted by ILO member states on their ratification of and compliance with ILO conventions and recommendations and preparing annual reports on its general observations concerning certain countries.

280 ILO Committee on Freedom of Association, Digest of Decisions: General (Protection against acts of interference), 1996, paras. 760, 767, 769; ILO Committee on Freedom of Association, Digest of Decisions: Back-to-work orders, the hiring of workers during a strike, requisitioning orders (Right to strike), 1996, para. 570.

281 The UN Global Compact is not a regulatory instrument nor a code of conduct.  Instead, it identifies ten “universal principles,” including freedom of association, and asks companies to “embrace, support and enact” those principles “within their sphere of influence.” UN Global Compact Office, “United Nations Global Compact: What is the Global Compact?,” May 17, 2005, (accessed August 3, 2006).  A participating company is “expected to publicly advocate the Global Compact and its principles via communications vehicles such as press releases, speeches, etc.” and “to publish in its annual financial report or similar document . . . a description of the ways in which it is supporting the Global Compact and all ten principles—the so-called Communication on Progress.” UN Global Compact Office, “The United Nations Global Compact: Advancing Corporate Citizenship,” June 2005, (accessed August 3, 2006).

282 The OECD Guidelines for Multinational Enterprises: Text, Commentary and Clarifications, DAFFE/IME/WPG(2000)15/FINAL, October 31, 2001.  The OECD Guidelines are “recommendations addressed by governments to multinational enterprises” that “provide voluntary principles and standards for responsible business conduct.” Ibid., Preface, para. 1.  These voluntary principles include “the right of . . . employees to be represented by trade unions and other bona fide representatives.” Ibid., Employment and Industrial Relations, para. 1(a).

283 The ILO Tripartite Declaration of Principles establishes that its aim “is to encourage the positive contribution which multinational enterprises can make to economic and social progress and to minimize and resolve the difficulties to which their various operations may give rise.”  The declaration explains that its principles “are intended to guide the governments, the employers’ and workers’ organizations and the multinational enterprises in taking such measures and actions and adopting such social policies . . . as would further social progress.” International Labour Office Governing Body, ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, 204th Session, Geneva, November 1977, third edition, 2001, paras. 2, 5.  

284 The draft UN Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms), adopted in 2003 by the UN Sub-Commission on the Promotion and Protection of Human Rights, represented a promising step towards universal recognition of the human rights responsibilities of companies.  The content of the UN Norms was largely uncontroversial, but there was considerable debate over their status under international law: whether they represented moral duties or binding obligations and whether, if binding, they consisted of emerging legal standards or existing requirements.  Businesses and some governments vigorously objected to the direct application of international human rights law to companies and rejected the UN Norms’ proposed implementation mechanisms.  As a result, the UN Norms did not gain traction. They experienced a further setback when Dr. John Ruggie, UN Special Representative on Business and Human Rights, harshly criticized the UN Norms.  Ruggie challenged the conceptual foundations of the UN Norms, arguing that the UN Norms did not articulate a principled basis for extending to companies concepts of international law originally developed to apply to states.  At the same time, Ruggie acknowledged the value of the UN Norms as a compendium of relevant standards and stated his intention to draw from its useful elements.

285 Wal-Mart Stores, Inc., “2005 Report on Ethical Sourcing,” 2006, (accessed November 28, 2006), pp. 28-29.

286 Human Rights Watch interview with Georgia Graham, former Wal-Mart worker, Aiken, South Carolina, June 15, 2005.

287 Human Rights Watch interview with “Pat Quinn,” June 13, 2005.

288 See, e.g., Beth Israel Hospital v. NLRB, 437 U.S. 483 (1978).

289 NLRA, sec. 7.  For a detailed analysis of US labor law, see Human Rights Watch, Unfair Advantage, pp. 51-70.

290 NLRA, sec. 8(a).

291 The structure and functions of the NLRB are discussed in detail in Unfair Advantage.  Human Rights Watch, Unfair Advantage, pp. 60-70.

292 Consolidated Edison v. NLRB, 305 U.S. 197 (1938).

293 Human Rights Watch, Unfair Advantage, p. 67.  Applying this principle to the unlawful firing of a worker for engaging in concerted activity, the US Supreme Court has further held that the fired worker is entitled to reinstatement and back pay, less the amount that the worker earned in the interim period between dismissal and reinstatement. See Republic Steel Corp. v. NLRB, 311 U.S. 7 (1940).

294 Robert A. Gorman, Matthew W. Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining (St. Paul, MN: West Publishing Co., 2004), p. 55.

295 Ibid.

296 Ibid., p. 175.

297 Decision and Order, Clark Bros. Co., Inc., and United Automobile, Aircraft, and Agricultural Implement Workers of America (UAW), CIO, 70 NLRB 802 (August 26, 1946), enforced on other grounds, NLRB v. Clark Bros. Co.,163 F.2d 373 (2d Cir. 1947).

298 Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, p. 176; Human Rights Watch, Unfair Advantage, p. 52.

299 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).

300 Bonwit Teller, Inc., and Amalgamated Clothing Workers of America, CIO, and Retail Clerks International Association, AFL, 96 NLRB 608 (1951), remanded on other grounds, Bonwit Teller, Inc.,v. NLRB, 197 F.2d 640 (2d Cir. 1952); see also, Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, p. 251.

301 The NLRB held that “an employer does not commit an unfair labor practice if he makes a pre-election speech on company time and premises to his employees and denies the union’s request for an opportunity to reply.” Livingston Shirt Corporation, S. J. Bilbrey, Union Bank & Trust Co., Dr. J. D. Capps, Marvin Leslie, Mitchell Leslie, Leslie Bros. Dry Goods Store, J. B. Morgan, Livingston Dry Goods Store, Clarence Davis, Lansden-Coward Drug Co., S. B. Smith, L. G. Puckett, Jenkins & Darwins Dry Goods Store, Houston Holman, Holman's Dry Goods Store and Amalgamated Clothing Workers of America, CIO, 107 NLRB 400 (1953); see also, Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, p. 252.

302 See, e.g., NLRB v. United Steelworkers of America, 357 U.S. 357 (1958).

303 Decision and Order, Wal-Mart Stores, Inc., and UFCW International Union, AFL-CIO, CLC, NLRB Div. of Judges, Case Nos. 28-CA-18255, 28-CA-18257, 28-CA-18897 (April 26, 2004), citing NLRB v. Babcock & Wilcox, 351 U.S. 105 (1956); Lechmere, Inc., v. NLRB, 502 U.S. 527 (1992).

304 Lechmere, Inc.,v. NLRB, 502 U.S. 527 (1992).

305 For further discussion of the history of the NLRB, see James A. Gross, Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994 (Philadelphia, PA: Temple UniversityPress, 1995).

306 See, e.g., Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, p. 184.

307 Under US law, employers may permanently replace workers striking for economic reasons, though a worker has the right to be reinstated if the replacement worker leaves or a comparable position becomes available. The Laidlaw Corp. and Local 681, International Brotherhood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO, 171 NLRB 1366 (1968), enforced, Laidlaw Corp. v. NLRB, 414 F.2d 99 (7th Cir. 1969); see also, Gorman, Finkin, eds., Basic Text on Labor Law, Unionization and Collective Bargaining, p. 184.

308 See, e.g., Human Rights Watch, Unfair Advantage, p. 69. 

309 NLRB, “Seventieth Annual Report of the National Labor Relations Board for the Fiscal Year Ended September 30, 2005,” May 1, 2006, Table 23.

310 NLRA, sec. 10(j).

311 Ibid., sec. 10(l).

312 Miller v. California Pacific Medical Center, 19 F.3d 449 (9th Cir. 1994); see also, Archibald Cox, Derek Curtis Bok, Robert A. Gorman, Matthew Finkin, eds., Labor Law: Cases and Materials (Westbury, NY: The Foundation Press, Inc., 1996), p. 263.

313 Human Rights Watch, Unfair Advantage, p. 89. 

314 Human Rights Watch interview with James Porcaro, August 9, 2005.

315 Human Rights Watch interview with Angie Griego, March 21, 2005.

316 ILO Committee on Freedom of Association, Complaint against the Government of the United States Presented by the UFCW, the AFL-CIO and the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET), Report No. 284, Case No. 1523, Vol. LXXV, 1992, Series B, No. 3, para. 199(a).

317 Organization for Security and Cooperation in Europe (OSCE), Office for Democratic Institutions and Human Rights, “Existing Commitments for Democratic Elections in OSCE Participating States,” October 2003, sec. 7.3.

318 ILO Committee on Freedom of Association, Digest of Decisions: Back-to-work orders, the hiring of workers during a strike, requisitioning orders (Right to strike), 1996, para. 570.

319 ILO Committee of Freedom of Association, Complaint against the Government of the United States presented by the AFL-CIO, Report No. 278, Case No. 1543, Vol. LXXIV, 1991, Series B, No. 2, para. 92.

320 Ibid., para. 93.

321 ILO Committee on Freedom of Association, Complaint against the Government of the United States Presented by the UFCW, the AFL-CIO and FIET, 1992, Series B, No. 3, para. 198.