U.S. NCP Final Assessment: Communications Workers of America (AFL-CIO, CWA)/ver.di and Deutsche Telekom AG
The OECD Guidelines for Multinational Enterprises (Guidelines) are voluntary, non-binding recommendations for responsible business conduct in a global context. The Guidelines are addressed to multinational enterprises (MNEs) operating in or from the territories of governments adhering to the OECD’s Declaration on International Investment and Multinational Enterprises, of which the Guidelines form one part. Adhering governments have committed to encourage their MNEs to follow the Guidelines in their global operations and to appoint a National Contact Point (NCP) to assist parties in seeking a consensual resolution to issues that may arise under the Guidelines.
As a part of its function, the U.S. NCP receives concerns raised, in the form of a specific instance, about the business conduct of a MNE operating in or from the United States. It handles such issues in accordance with procedures it has adopted for this purpose. In such circumstances, the U.S. NCP's primary function is to assist affected parties, when appropriate, in their efforts to reach a satisfactory and consensual resolution to matters raised under the Guidelines. The U.S. NCP takes up issues that are amenable to a consensual resolution under the Guidelines and, where appropriate, makes recommendations as to how the enterprise might make its business practices more consistent with the Guidelines. Consistent with the voluntary nature of the Guidelines, the U.S. NCP does not make a determination whether a violation of the Guidelines has occurred, nor does it adjudicate disputes submitted under this process.
The Specific Instance
On July 12, 2011, the Communications Workers of America (CWA), ver.di and UNI Global Union ("CWA" collectively) submitted a specific instance of the same date to the U.S. NCP regarding concerns about labor practices by Deutsche Telekom AG (DT) operating in the United States as T-Mobile USA, (DT/T-Mobile) and in Montenegro as Crnogorski Telekom A.D. Podgorica. CWA's specific instance contended that DT was operating in a manner inconsistent with the OECD Guidelines in relation to Chapter I, Concepts and Principles, paragraphs 3 and 5; and Chapter V, Employment and Industrial Relations, paragraphs 1.a), 4. a) and 8.
On August 4, 2011, the U.S. NCP acknowledged receipt of the submission of the specific instance and forwarded the specific instance and supporting documents to DT/T-Mobile. The German and U.S. NCPs consulted and subsequently agreed that the U.S. NCP would take the lead on the T-Mobile portion of the specific instance because the concerns raised regarding T-Mobile's activities occurred in the United States, and that the German NCP would take the lead on the Crnogorski Telekom A.D. Podgorica (Crnogorski) portion of the specific instance because the activities of Crnogorski occurred in Montenegro, a country not adhering to the OECD Guidelines.
In discussions with the Office of the U.S. NCP, CWA alleged that the activities of some DT/T-Mobile supervisors were, in effect, intimidating workers from exercising freedom of association. CWA requested that DT/T-Mobile not interfere with employee organizing activities, issue a policy statement instructing supervisors to remain neutral regarding employee organizing, and conduct follow-up monitoring and enforcement of this policy.
DT/T-Mobile provided the following responses:
- The U.S. NCP cannot encourage DT/T-Mobile to commit to neutrality since that would abrogate rights available under national and international law; CWA’s claims must be, and in some cases have been, resolved under the process set forth under U.S. law and that the NCP process was therefore not the appropriate forum; and
- CWA was using the specific instance to further escalate CWA's public campaign against DT/T-Mobile; and that the specific instance was part of a broader corporate campaign of the German trade union ver.di to pressure DT in Germany to agree to a global union framework agreement.
The Office of the U.S. NCP clarified, and it was agreed among the parties, that the U.S. NCP's role was to provide a neutral, third-party facilitated dialogue, and not make a determination whether a violation of the Guidelines has occurred, nor does it adjudicate disputes submitted under the process.
In order to establish trust between the parties, the Office of the U.S. NCP proposed that the parties could agree to establish ground rules for mediation, noted that third-party mediation could help the parties identify opportunities to resolve their differences, and that an agreement to use the U.S. NCP's good offices for mediation would not be an admission of inappropriate activities by either party. Both parties appeared receptive to further participation in the NCP process.
Initial Assessment Recommendations
In its review of the information provided by the parties, the Office of the U.S. NCP determined that the matters raised were international in nature, were bona fide, and were relevant to the implementation of the Guidelines. The basis for this determination included the link between Deutsche Telekom and T-Mobile’s activities in the United States; an assessment that the concerns about best practices raised by CWA were material and substantiated; and that consideration of the issues raised would contribute to the purpose and effectiveness of the Guidelines. Based on their communications with the Office of the U.S. NCP, both parties indicated that they would continue to participate in the process.
On November 5, 2012, the Office of the U.S. NCP issued an initial assessment determining that the issues raised by the parties warranted further consideration under the Guidelines and offered its good offices in order to contribute to a positive resolution of those issues and to the purpose and effectiveness of the Guidelines. The Office of the U.S. NCP underscored that under its procedures, acceptance of the specific instance was not an endorsement of the merits of the allegations, but rather indicated that the Office of the U.S. NCP considered it appropriate to facilitate a discussion between the parties of the issues raised. The Office of the U.S. NCP requested that the parties participate in efforts to arrive at a consensual resolution of the matter and recommended voluntary, third-party mediation under the auspices of the U.S. Federal Mediation and Conciliation Service (FMCS).
Conclusion of the Specific Instance Process
DT/T-Mobile and CWA indicated a general willingness to participate further in the specific instance process. At the same time, DT/T-Mobile raised various questions and concerns regarding the process going forward.
First, DT/T-Mobile raised questions regarding proposed procedural safeguards in light of concerns about the alleged publicity associated with CWA’s submission of the case and the role of the U.S. NCP in facilitating a pre-mediation discussion. The Office of the U.S. NCP explained to the company that its discretion to foster a consensual resolution of the issues derived from paragraph I.C.2.d of the Procedural Guidance to the OECD Guidelines, which provides that the NCP can "facilitate access to consensual and non-adversarial means, such as conciliation or mediation, to assist the parties in dealing with the issues," and the U.S. NCP Procedures, which provide that the U.S. NCP may offer "its good offices to both parties" and may request "their participation in efforts to arrive at a consensual resolution."
Second, DT/T-Mobile questioned the role of the Office of the U.S. NCP and the FMCS in facilitating a resolution of the dispute. DT/T-Mobile took the view that it was unlawful for an employer to deal with a labor organization that does not represent a majority of its workers and that DT/T-Mobile would therefore be waiving its rights under national and international law. The Office of the U.S. NCP explained to the company that the U.S. NCP Office has discretion under the Guidelines to facilitate a voluntary dialogue about best practices in the area of company-labor relations and that the FMCS is authorized broadly under U.S. law, including under the Administrative Dispute Resolution Act of 1996, to support the U.S. NCP’s mission.
Third, DT/T-Mobile raised concerns about what it described as additional examples of CWA publicizing the text of its specific instance while the specific instance process was ongoing. CWA challenged the company’s characterization. The Office of the U.S. NCP explained to DT/T-Mobile that the issue of confidentiality, among other procedural safeguards, could be addressed at a pre-mediation meeting of the parties in order to establish the terms of reference for mediation.
Consideration of DT/T-Mobile’s questions and concerns, in part, resulted in significant delays in the process. Between November 5, 2012, and February 12, 2013, the Office of the U.S. NCP offered DT/T-Mobile numerous dates to hold a pre-mediation meeting. Throughout the proceedings, CWA expressed its interest in moving forward to mediation.
After the Office of the U.S. NCP addressed DT/T-Mobile’s questions, DT/T-Mobile agreed on February 26, 2013 to participate in a pre-mediation meeting. A pre-mediation discussion was facilitated by the Office of the U.S. NCP and the FMCS on March 5, during which the parameters and general approach for the process that had been established by the FMCS on behalf of the Office of the U.S. NCP were discussed. The FMCS requested a date from the parties for a first mediation meeting. On March 12, the FMCS advised the Office of the U.S. NCP that it had not received a timely response from DT/T-Mobile regarding the initial mediation meeting and referred the case back to the Office of the U.S. NCP, advising that it had made no progress moving the process forward.
On March 19, 2013, the Office of the U.S. NCP informed the parties that it was preparing a final statement regarding the specific instance. Based on the circumstances and the materials before the Office of the U.S. NCP, it is determined that the U.S. NCP is no longer able to contribute to a positive resolution of this dispute and therefore withdraws its offer of good offices.
Gregory F. Maggio
Office of the U.S. National Contact Point for the OECD Guidelines for Multinational Enterprises
July 9, 2013