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Friday, August 17, 2012

ILO Decision May Offer Opportunity for City Labor


August 16, 2012
By Marc Bussanich, LaborPress City Reporter

A November 2011 International Labor Organization decision ruled, after the Transport Workers Union Local 100 filed a complaint with the ILO in November 2009 after the union struck in December 2005 and was heavily fined, that New York’s Taylor Law banning and penalizing public worker strikes violates fundamental workers’ rights protected by international law. With 200,000 city public workers without contracts, in some cases over five years, the ILO decision would seem to have presented the city’s public sector unions the economic leverage they have desperately needed to win new contracts.

The ILO is a tri-partite agency of the United Nations made up of governments, employers and unions that was founded in 1919 as part of the Treaty of Versailles that ended the devastation and horrors of World War 1 to “reflect the belief that universal and lasting peace can be accomplished only if it is based on social justice.”

According to Dom Tuminaro, an adjunct professor at the Brooklyn College Graduate Center for Worker Education, the U.S. is one of over 100 countries that have ratified the ILO’s Constitution, but out of 189 ILO Conventions, the U.S. has ratified only two.

Numerous unions around the world have filed complaints with the ILO when they believed that their governments have improperly interfered with their ability to organize, collectively bargain or take concerted action such as a strike. For example, when the Indian government fired 200,000 public school teachers for going out on strike it was urged by the ILO to rehire all of them, and the Indian government complied.

The U.S. track record on complying with ILO recommendations has been a mixed bag. When TWU Local 100 and its international union filed a complaint with the ILO in November 2009 on the grounds that New York’s Taylor Law violates two core conventions that are most focused on workers’ rights to organize and bargain, freedom of association and the right to concerted action such as the strike (Convention Nos. 87 and 98), the U.S. government’s response to the TWU complaint was that the “United States’ unique, decentralized and diverse system of government…establishes a federalist regime in which the national Government exercises only those powers the Constitution expressly affords it. All other powers are reserved to the 50 states or to the people themselves.”

Thus, the U.S. government hasn’t ratified Convention Nos. 87 and 98, while other countries have. The U.S. is a signatory to the ILO Constitution, but it always claims in response to ILO complaints brought forward by unions that it doesn’t have the necessary authority to interfere in the proceedings or disputes between public sector unions and the states where they represent working members.

Although the U.S. hasn’t ratified the two core workers’ rights Conventions, Tuminaro notes by virtue of signing the ILO Constitution, the U.S. has essentially agreed to the principles defined in Convention Nos. 87 and 98.

“When a country becomes a member of the ILO, it signs onto certain fundamental principles [freedom of association, etc.]. The fact that the U.S. didn’t sign onto Convention Nos. 87 and 98 doesn’t mean that the U.S. isn’t bound by those core principles.”

Indeed, the ILO itself says, “Even if they [Member States] have not ratified the Conventions in question, (they) 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…”

Tuminaro also noted that when critics say that the U.S. is not bound by the ILO’s recommendations because it hasn’t ratified Convention Nos. 87 and 98, the U.S. government’s ratification by the Senate in 1994 of the International Covenant on Civil and Political Rights (ICCPR), which expands upon the core principles of the two conventions, makes the treaty the law of the land and therefore binds the states to the treaty based on the Supremacy clause of the U.S. Constitution.

Certainly, in response to the TWU complaint that provisions of the Taylor Law [compulsory arbitration which negates the union’s ability to strike] “constitute a serious infringement of Convention Nos. 87 and 98,” the ILO said:

“Noting that the Government’s reference to the Federalist system of constitutional government, the Committee nevertheless requests the Government to take steps aimed at bringing the state legislation, through the amendment of the relevant provisions of the Taylor Law, into conformity with freedom of association principles so that only (1) public servants exercising authority in the name of the state and (2) workers of essential services in the strict sense of the term may be restricted in their right to strike.”

Essentially, the recommendation makes it clear that the vast majority, aside from the Governor, State Comptroller and District Attorney and their staffs, of public workers in New York should be able to exercise the right to strike.

However, since the November 2011 ILO decision regarding the TWU’s complaints, Tuminaro said that there hasn’t been a unified response from the city’s public unions, although 200,000 members are working without contracts.

Tuminaro suspects that because the city unions have long been accustomed to working within a certain framework, such as the legislative process to get what they want, it may be difficult for the unions to think or do things outside the box.

“It could be that the city public sector unions are reluctant because they feel like they're on the defensive and they see what’s happening across the country as collective bargaining is under attack,” said Tuminaro.

Also of potential concern to the unions is that if they push for the right to strike as a result of the ILO decision, then the business community, using the same legislative process as the unions to get what it wants, might say that if the unions are able to strike it might demand an end to the Triborough Amendment, a New York Court decision that the unions deem favorable because the amendment at least preserves the provisions of the previous contract when the two sides can’t agree on a new contract.

As the Taylor Law is the legal regime governing public sector bargaining in New York, the decision by the ILO in November 2011 is “no small matter,” said Tuminaro. At the very least, a discussion can begin about the seemingly golden opportunity presented to New York’s public sector unions.

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