Stefan Marculewicz Employer free speech under international law A Special Presentation for the International Organisation of Employers Global Industrial Relations Network

genda ▓ Background ▓ Framing the Debate ▓ CFA Case No ▓ Scope of Employer Speech ▓ Acknowledgements

Background ▓ Who am I? ▓ U.S. operations ▓ Perceptions of U.S. law ▓ Employer free speech ▓ Goals of labor unions –Neutrality/Silence –Access

“The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat or reprisal or force or promise of benefit.” - National Labor Relations Act Sec. 8(c)

Framing the Debate ▓ Who is framing the debate? ▓ Labor/Trade Unions ▓ Human rights groups/NGO’s ▓ A limited response by employers ▓ If you say it enough it becomes the truth

ILO CFA Case No ▓ Multinational employer ▓ Corporate campaign ▓ Domestic agenda ▓ Allegations ▓ Response ▓ Active participation in the debate at the ILO

The results.... ▓ No condemnation of existing U.S. law ▓ Clear ILO statement that employers have a right to freedom of expression and opinion ▓ An employer may express opinion about unionism and not violate international law

Freedom of expression is a “fundamental corollary” of freedom of association, and the two... “must not become competing rights, one aimed at eliminating the other.” Key language from the case...

The ILO has acknowledged... “There is no doubt that freedom of expression is a basic civil liberty whose protection, along with other basic civil liberties, is essential to the meaningful exercise of freedom of association.” -Letter dated July 12, 2010 from Karen Curtis, ILO Deputy Director International Labour Standards Department to Antonio Peñalosa, Director General IOE

Scope of Employer Speech An employer cannot speak in a way that: –Interferes with workers forming a union –Encourages workers to withdraw membership –Expresses opinions that intimidate workers

Scope of Employer Speech An employer has the right under international law to: –Express its opinion on unionism to workers –Tell employees how they can vote against a union –Explain that it would prefer not to have a union and why –Give employees relevant information that employees can use to make their decision on unionism

What does that mean? ▓ An employer can express its opinion on unionism and still be in compliance with international labor standards ▓ The failure of an employer to convey its opinion is contrary to the principles of freedom of association because it denies workers access to all relevant information

Next Steps... ▓ Take control of the debate ▓ Employers can respect freedom of association and ▓ Employers can express an opinion that is not favorable to unions ▓ Employers can have a code of conduct and still speak out against unions

Stefan Marculewicz THANK YOU A Special Presentation for the International Organisation of Employers Global Industrial Relations Network