THE PROTECTION OF THE RIGHT TO REFUSE UNSAFE WORK: HUMAN RIGHTS AND THE FAILURE OF GLOBAL WORKER HEALTH AND SAFETY POLICY A Dissertation Presented to the Faculty of the Graduate School of Cornell University In Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy by Jeffrey Arthur Hilgert May 2011 © 2011 Jeffrey Arthur Hilgert THE PROTECTION OF THE RIGHT TO REFUSE UNSAFE WORK: HUMAN RIGHTS AND THE FAILURE OF GLOBAL WORKER HEALTH AND SAFETY POLICY Jeffrey Arthur Hilgert, Ph.D. Cornell University 2011 This dissertation is an in-depth case study of the right to refuse unsafe work under global labor and human rights standards. Using historical and legal research methods, it documents a false consensus surrounding the protection of the right to refuse unsafe work under ILO Convention No. 155, a key international labor convention on occupational safety and health. After introducing the topic, outlining a conceptual framework for the study of human rights in labor and employment relations, and placing the emergence of the right to refuse unsafe work as a global human rights issue in historical context, the study examines the jurisprudence and effectiveness of the dominant refusal rights model as advanced in current global worker health and safety policy. It chronicles how the political efforts of governments and employers counter-mobilized against stronger anti-discrimination protections for workers protesting their working conditions and how employer political activity resulted in the adoption and global diffusion of a restricted and inherently ineffective right to refuse labor protection. The dissertation presents implications for the international jurisprudence on workers‘ freedom of association, the labor activist debates about workers‘ rights as human rights, and the scholarly narrative regarding the rise of an individual employment rights era in contemporary labor and employment relations. Biographical Sketch Jeffrey Hilgert grew up in Renville County, Minnesota. After high school, he attended the University of Minnesota Duluth and graduated in 1996 with magna cum laude honors and a Bachelor of Arts in Political Science. He attended graduate school at the University of Massachusetts Amherst Labor Relations and Research Center and received a Master of Science in Labor Studies in 1999. He returned to Minnesota and worked for five years with a number of anti-poverty and workers‘ rights organizations, including the Damiano Center, the Workers‘ Rights Network of Northeast Minnesota, and Local 1116 of the United Food and Commercial Workers. Hilgert was awarded a fellowship for community leadership to continue his education by the Archibald Bush Foundation of St. Paul, Minnesota. In 2005, he started doctoral studies at the School of Industrial and Labor Relations at Cornell University. He received a Canada U.S. Fulbright Fellowship for 2009-2010 and did dissertation research as a visiting graduate research scholar at McGill University in Montréal. He joined the faculty of the École de relations industrielles at the Université de Montréal in 2011 as an assistant professor of santé et sécurité de travail. He is married to Gioconda Lopez Ayestas of Matagalpa, Nicaragua and they are the parents of two children, Arthur and Elena. iii I dedicate this dissertation to Gioconda, Arthur and Elena. Without your support and understanding this would not have been possible. I also dedicate this work to Clete Daniel, a friend and professor who served four years on my doctoral committee before his untimely death on April 18, 2010 and to the 2.2 million workers killed every year by work-related injuries and illnesses. iv Acknowledgements I acknowledge first and foremost my doctoral committee. Without the support of my committee chairperson James A. Gross, this dissertation would likely not have happened. His encouragement and experience were invaluable through my doctoral education. He has been both an incredible mentor and a good friend. Lowell Turner always offered me thoughtful and focused comments at key points as my dissertation developed. His critical questions and comments prompted me to hold a more critical analysis of the human rights worldview, always reminding me of the importance of power in labor relations. Risa Lieberwitz provided excellent insights into many of the legal and jurisprudential arguments made in this dissertation. I thank her for being supportive and always reminding me of the broader social importance of this research. Lance Compa suggested exploring the topic of the right to refuse unsafe work as a human right very early in my dissertation planning. I thank him for his advice, encouragement, and continued advancement of the study of international labor law. The staff of the Martin P. Catherwood Library at Cornell University has been very helpful throughout my doctoral research. My sincere gratitude goes to Gordon T. Law, Stuart Basefsky, Suzanne Cohen, Susan LaCette and the other Cornell librarians. Early in my doctoral program I was invited by Connor Gearty at the Centre for the Study of Human Rights at the London School of Economic and Political Science to present a conference paper on inter-disciplinarity in human rights scholarship. That working paper led to this dissertation. I am grateful for his advice and encouragement. My graduate education at Cornell was in part supported by the Archibald Bush Foundation of St. Paul, Minnesota and the Canada – United States Fulbright Program. While in Canada, Robert Hebdon at the Desautels Faculty of Management at McGill v University had graciously served as my supervisor while I was a Fulbright fellow. My transition to study in Canada was also made easier by Christopher Kirkey at the Center for the Study of Canada at SUNY Plattsburgh who invited me to participate in the July 2009 CONNECT Seminar in Ottawa for U.S.-based Canadian scholars. Thank you to the archivists at the Archives of Ontario for assistance with the archives of the Ontario Royal Commission on the Health and Safety of Workers in Mines, the archivists at Library and Archives Canada in Ottawa for archival help on the Canadian history with the ILO, and thanks to the Government Information Service collections staff at the Humanities and Social Sciences library at McGill University. The staff of the Office of the Whistleblower Protection Program at the U.S. Occupational Safety and Health Administration was helpful in guiding my Freedom of Information Act request through the proper administrative channels. I am indebted to Nilgun Tolek and Michael Shanker for their professionalism and support. Bob Sass corresponded with me during the writing of this history and provided many insights about workers‘ health and safety activism in Canada since the 1970s. My gratitude to Larry Haiven at St. Mary‘s University in Halifax for introducing me to Bob Sass and arranging for us to meet at a conference in Saskatoon, Saskatchewan. I thank Barney Glaser and the other participants in the 2008 Grounded Theory Troubleshooting Workshop in New York who each offered me very valuable insights. The ILO International Training Centre in Turin accepted my participation in a specialized training program on international labor standards in the early stages of my doctoral program. I learned a great deal from my colleagues in the course (A900614) who were from around the world. I especially remember my colleagues Kyaw Swa Pu with the ILO‘s liaison office in Myanmar and David Samuel with the Department of Labor in St. Vincent and the Grenadines. The experts in the NORMES department are vi to be commended for their dedication to labor rights, many of whom helped inform this dissertation research either directly or through participating by video connection in courses on workers‘ rights at the Cornell ILR School. They include Catherine Brâkenhielm Hansell, Karen Curtis, Lee Swepston, Jean-Pierre Laviec, Jukka Takala, Seiji Machida, Michele Nahmias and Martin Oelz as well as a number of others. I acknowledge the faculty and doctoral students who participated in the ―CB‖ workshop at the Cornell ILR School from 2005-2010. Your presentations, questions, and comments at these workshops were always helpful and instructive to me. I thank faculty members Lee Adler, Richard Hurd, Rebecca Givan, Sarosh Kuruvilla, Alex Colvin, Kate Bronfenbrenner, Maria Cook and Kate Griffith. My gratitude extends to each of my doctoral student colleagues, including Maite Tapia, Sun Wook Chung, Jonathan Ying, Magdalena Hipp, Ariel Avgar, Chad Grey and Marco Hauptmeier. Finally, I would like to acknowledge the people that encouraged me to pursue a Ph.D. from the beginning. My friend Séamas Cain from Carlton County, Minnesota, a social activist, historian, and performance artist, was enthusiastic and encouraged my view that studying workers‘ rights was an essential endeavor. I reserve my deepest thanks and appreciation for my wife and partner, Gioconda. She has supported me and our family in countless ways throughout six years of graduate school at Cornell. vii TABLE OF CONTENTS Biographical Sketch . iii Dedication . iv Acknowledgements . v Table of Contents . viii List of Tables . xi CHAPTER I – INTRODUCTION The right to refuse unsafe work as a labor and employment relations problem 1.1. Studying conflict in the working environment 1 1.2. The right to refuse unsafe work 7 1.3. Human rights in labor and employment relations 15 1.4. Overall plan for the dissertation 35 CHAPTER II – THEORETICAL AND CONCEPTUAL FRAMEWORK Analyzing power, exclusion and influence under labor and human rights standards 2.1. Understanding labor rights policy in a market society 37 2.2. Contemporary theories of labor rights policy change 44 a. Individual rights consciousness 45 b. Shifting axes of social mobilization 50 c. A long exception from individualism 52 2.3. Employer political activity in labor and employment relations 55 2.4. The mobilization of bias and the institutional environment 61 2.5. Analyzing power, exclusion and influence 64 2.6. Effective human rights and the right to refuse unsafe work 75 viii CHAPTER III – HISTORICAL BACKGROUND Collective bargaining confronts a new generation of business activism 3.1.