A long-dormant union rights case at the National Labor Relations Board is being revived, with the potential to pit the not-so-powerful federal labor agency against the very powerful King Salman bin Abdulaziz al Saud, monarch of oil-rich Saudi Arabia.
Directly at issue is the right to organize a union for employees at the Islamic Saudi Academy, a private school for grades K-12 in Alexandria, Virginia. Close by Washington, D.C.'s Embassy Row, the Academy has long operated to educate the children of Saudi Arabian diplomatic staffers stationed at the country's sprawling U.S. embassy.
A move to organize the Islamic Saudi Academy Employee Professional Association (ISAEA) union was launched in 2012, but was stopped cold by an aggressive legal counterattack from Academy lawyers, according to NLRB documents.
After being snagged in legal issues for three years, the case has been revived with a September 1 decision by NLRB Regional Director Charles Posner that ruled that some of the Academy's employees could go forward with their organizing effort, but others could not. Posner's decision may not help any of the workers, however, because most of the union's supporters have already lost their jobs, and the Academy is escalating its fight against the NLRB, claiming, among other things, that U.S. labor law does not apply because the Academy is an arm of the Saudi royal kingdom.
"It was always a very tough case. You are essentially going up against the government of Saudi Arabia," says Tyler Freiberger, the local lawyer currently representing the workers. All of the Academy employees who were publicly associated with the 2012 organizing drive were "terminated," he reports, so it is hard to see how the organizing drive can be successfully re-started.
Most of the staff is hired under one-year contracts, he explains, and none of the contracts for the vocal union supports were renewed after 2013. Freiberger is now trying to reassemble the scattered ex-employees to decide on how best to proceed.
Even if the workers succeed in regrouping, the deck is still stacked against them, Freiberger continues. The Saudi Academy hired the high-priced international law firm Latham & Watkins to fight the union, he says, and they are employing the novel claim that the Foreign Sovereign Immunities Act (FSIA) exempts the Academy from any NLRB jurisdiction at all.
The argument holds that the Academy is an extension of the embassy itself and therefore entitled to the special diplomatic status. As recently as September 29, Latham & Watkins lawyer Maureen E. Mahoney argued that "the Academy is not engaged in 'commercial activity' and thus the FSIA bars the [NLRB] Board from exercising jurisdiction in this matter."
Freiberger says he takes issue with the FSIA claim. The Academy operates just like any other private school, accepting tuition money and fees from parents in return for providing educational services, and thus should be treated under labor law just like any other private school, he says. But the FSIA claim has never been fully tested in court, so Latham & Watkins has an opening to potentially drag the case through the courts for years.
"They've made it clear they'll take this all the way to Supreme Court if they have to," he says. "Given the deep pockets of the Saudi government, I don't doubt them for a minute."
The NLRB itself doesn't accept the FSIA claim either, the labor lawyer notes, and the board has successfully fought several similar claims in the past.
Latham & Watkins attorney Joseph Farrell told In These Times that no member of the legal team, nor any representative of the Islamic Saudi Academy, was willing to be interviewed about the case.
The fierce anti-union attitude emanating from the Islamic Academy is of a piece with attitudes back home, including that of King Salman and the rest of the royal family, says Dr. Ali Alyami, Director of the Washington, D.C.-based Center for Democracy and Human Rights in Saudi Arabia. Unions of any kind were strictly forbidden in the kingdom until very recently, and as of 2014 no unions existed in the country. The Saudi government has been condemned worldwide for tolerating labor abuses of some eight million foreign workers imported into the country.
"The Saudi royal family is an absolute monarchy, therefore it considers formations of independent unions and other forms of civil society a threat to its absolute rule," Alyami tells In These Times. "Additionally, the Saudi regime's source of power and legitimacy, the religious establishment, considers unions and the rule of law un-Islamic, and an infidel's invention designed to destroy Islam, Muslims and their traditions, which [the Saudi government] claims superior to all other beliefs and traditions."
Intolerance of unions, whether inside or outside of Saudi Arabia, are linked to the Saudi "extremist brand of Islam, known as Wahhabism," he says. "It's no secret that American officials, businesses, think tanks, labor unions and media look the other way when it comes to Saudi misconduct, whether labor abuses, violations of basic human rights, women's right, social justice and freedom of worship, including forbidding non-Muslims from practicing their religious rituals publicly in Saudi Arabia."
It's likely that Saudi officials in the U.S. would fear to deal with American labor unions, Alyami speculates, because they might face official retribution emanating from the royal clique.
There are other complicating factors in the NLRB case. ISAPEA was originally formed to represent Academy teachers and other non-teaching professionals. To counter the organizing campaign, the Academy claimed it was an Islamic religious institution and therefore had a right to deny union representation to the teachers (the U.S. Supreme Court's 1979 NLRB v Catholic Bishop of Chicago case ruled that religious schools do not have to recognize the collective bargaining rights of teachers).
The NLRB's Posner supported the Academy on this issue, pointing to the explicit Islamic character of the school's programs and policies. But Posner also ruled the right to deny union representation to the teachers did not extend to the non-teaching staff, and that they have a right to continue their organizing effort.
But, as Freiberger noted earlier, the Islamic Saudi Academy has made it very hard, if not impossible, for any union organizing effort to get restarted. The rule of King Salman may actually have succeeded in extending itself to govern the school workers at the Academy's Virginia campus.