Labor law beyond U.S. borders: does what happens outside of America stay outside of America?

• Author: Gould, IV, William B.

INTRODUCTION

This Article examines issues of extraterritoriality that have arisen in American labor law, resistance to such legal extension in Canada and Great Britain, and the law of the nation-state inside of the United States and its potential for being influenced from abroad. Specifically, I focus on some of the labor case law that has emerged under the Alien Tort Claims Act of 1789 as well as the extent to which American courts are examining foreign law in addressing domestic issues as a general proposition. In this connection, the Article discusses some American labor law issues arising under the National Labor Relations Act, particularly during the time of my chairmanship of the National Labor Relations Board during the 1990s. It concludes with a focus upon corporate codes of conduct, particularly that of FirstGroup America, where I serve as the Independent Monitor.

1. AMERICAN LABOR LAW AND ITS EXTRATERRITORIAL EFFECT

   In the beginning of modem labor law in the United States was the National Labor Relations Act of 1935 which, through the prism of an administrative process (albeit with the important feature of judicial review upon an expert agency), (1) promoted the basic concept of freedom of association and the process of collective bargaining to resolve disputes between labor and management as fundamental public policy. The National War Labor Board augmented this by fostering arbitration and no-strike clauses as well as so-called union security provisions (requiring union "membership" as a condition of employment (2)), which gave labor a more secure place at the table. (3) The United States Supreme Court, after it cleared away much of the underbrush of antitrust law and restraint of trade concepts as applied to organized labor, (4) soon enshrined the principle of freedom of association as part of the First Amendment to the United States Constitution. (5) All of this was more than a half decade before (6) the International Labor Organization's Conventions Nos. 87 and 98 were ratified in Indonesia. (7)

   One can safely say that not only American labor law was the inspiration for the development of its Canadian analogue in 1944 as Professor Harry Arthurs has noted, (8) but also that it was important to the ILO itself well before Convention No. 87 was promulgated in 1949. It was American involvement and its adherence to the NLRA that established the environment in which the Declaration of Philadelphia was issued in 1944. And victors' justice was to bring the basic concept of unfair labor practice concept absent the NLRA secret ballot box election machinery to Japan notwithstanding the fact that there was no Japanese word for "unfair labor practices." (9)

   Note that the early development of labor law and America's stance towards the international community promoted involvement and contact, albeit within the context of the assumption that others should follow America. The early extraterritoriality decisions fashioned by the Supreme Court assume, for the most part, that National Labor Relations Board jurisdiction could extend beyond our shores if reflected in congressional intent. (10) The Taft-Hartley amendments to the NLRA, though widely decried by organized labor as a "slave labor act" principally for imposing restrictions and injunctions upon national emergency disputes which affected health and safety, (11) restricted various forms of union strike activity, and made unions suable for breach of a no-strike pledge (12)--did not appear to interfere with union growth and left the country's commitment to freedom of association and collective bargaining unamended! Thus, when one considers the body of law that may be exported under the rubric of extraterritoriality, both rights and obligations of organized labor are inevitably part of what is extraterritorial but there has been no diminution of the public policy promoting freedom of association and collective bargaining.

   The most prominent example dealing with the extraterritoriality issue came when the Board, addressing cases involving professional leagues which covered both the United States and Canada, quietly repudiated (13) an earlier decision involving soccer refusing to certify an appropriate unit covering a Canadian club, (14) and quickly extended our jurisdiction north of the border. (15) This occurred when my Board sought an injunction in the 1994-95 baseball strike covering Canadian as well as American clubs. (16) Here the Board simply mirrored what our predecessors had done during the 1981 strike (the second in history), i.e., seeking league-wide injunctive relief for both the United States and Canada in American courts. (17) Within a few months of that decision, our Board, in an election involving the National Basketball Association and the NBA Players Association, through the New York City Regional Director, asserted jurisdiction over Canadian clubs. The Regional Director noted:

   The National Basketball Players Association ... has been recognized by the NBA as the exclusive bargaining representative for players to be employed by these teams [the Toronto Raptors and the Vancouver Grizzlies] ... in the future and has appointed an agent for service in Canada. The record further reveals that the players initially on the rosters of these two teams were acquired from other NBA member teams as a result of the expansion draft and, of course, will play close to 50% of the season within the United States.... It is well settled that the Board's statutory jurisdiction encompasses foreign employers doing business within the territorial United States. (18) In a sense, these cases go beyond the earlier and more recent ones (19) carrying American labor law into Canada and Mexico when workers are temporarily employed in those countries. Developments under antitrust law, (20) and even in the antidiscrimination arena where the Court had held that the Civil Rights Act of 1964 did not apply to discriminatory conduct in Saudi Arabia against Jews (21) and was quickly reversed by Congress, (22) also support an expansive view of extraterritoriality.

   Of course, the practical effect of extraterritoriality cannot be viewed in vacuo. Some consideration of foreign jurisdictions' reactions to extraterritoriality must be taken into account. Inevitably there has been pushback. Of course, outside of the context of extraterritoriality itself, the first major illustration of this is from the 1970s in Great Britain where the unions would not accept the idea that Taft-Hartley should come to the United Kingdom (23) and the elections of 1974 and 1976 reversed a brief interlude of the perceived transplanting of America associated with the Conservative Government. And in a case directly implicating the American extraterritorial issue--even before the NLRB asserted jurisdiction over baseball and basketball--the Ontario Labor Relations Board asserted jurisdiction over a lockout of baseball umpires and provided for the replacement of the locked-out umpires while noting that "the situation in Ontario is only a small slice of the collective bargaining pie that is largely driven and regulated by forces outside Ontario." (24) Recognizing that there was a tactical advantage in the fact that the replacement of those locked out was lawful in the United States but unlawful in Ontario, the Board noted that "fragmented collective bargaining" and the assertion of jurisdiction by different provincial boards was inherently part of the Canadian legal framework. Within months of this decision, the Ontario Board asserted jurisdiction over NBA referees who had also been locked out. The Board, noting that no one had ever suggested that tradespeople in the construction industry were beyond Ontario jurisdiction simply because their employment in Ontario was "sporadic", and companies based elsewhere. applied the reasoning of the baseball umpires case and asserted jurisdiction. (25) Although the British Columbia Labor Relations Board subsequently refused to exercise jurisdiction in response to a petition for representation by players of the Vancouver Canucks, (26) the United States appears to have taken little note of these developments in sports. Here, globalization has become the watchword of the twenty-first century and international tensions--between, for instance, the legal systems of Japan and the United States (27)--loom large.

   Recently, however, there has suddenly emerged a considerable interest in developments north of the border in response to the debate about the Employee Free Choice Act and labor law reform in this country. For now, there is a focus upon the card-check system of recognition which was once a uniform practice in Canada in the 1960s, but has now been abandoned by a majority of the provinces. (28) Similarly, there has been much discussion of first contract arbitration, a practice enshrined in the legislation of many of the Canadian provinces, but one which is used selectively and sparingly, except in Manitoba where it is automatically available at the end of a specific time period. This important feature appears to have escaped the attention of the first contract arbitration proponents in the United States.

   Tactical advantage is key in extraterritorial litigation or discussion of comparative experiences. The British unions are a good example of this: they were initially hostile to the Common Market, as it was called in the '50s and '60s, but then turned to the European Union as a lifeboat to rescue them from the repressive labor legislation of the Thatcher Government. American unions, similarly, have tried to extend freedom of association to disputes involving workers employed, for instance, by ships operating under so-called "flags of convenience" and for whom the law of developing countries provided minimal assistance. (29)

   But there has been pushback aplenty in some of the adjudicated cases where the British Columbia Labour Board considered a case filed by the Vancouver...