Labor Law beyond U.S. Borders: Does What Happens outside of America Stay outside of America?
Gould, William B., IV, Stanford Law & Policy Review
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.
I. 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. …