Report in which the committee requests to be kept informed of development - REPORT_NO262, March 1989

1. 203. The United Mine Workers of America (UMWA) presented a complaint of violations of trade union rights against the Government of the United States in a communication dated 28 July 1988, and submitted additional information in support of its complaint by letter of 9 September 1988. The American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) and the Miners' International Federation (MIF) expressed their support of the UMWA's complaint in communications dated respectively 2 and 8 September 1988. The Government submitted its observations in a communication dated 26 October 1988.
2. 204. The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 205. In its communication of 28 July 1988, the UMWA refers to the conduct of the Italian-based state holding company Ente Nazionale Idrocarburi (ENI) at its coal operations in the United States, run by one of its wholly-owned subsidiaries, Enoxy Coal Corporation ("Enoxy"). The present complaint relates to Enoxy's actions at its Pevler coalmining complex in Kentucky.
2. 206. The UMWA's complaint can be summarised as follows. First, a general allegation that the enforcement procedures of US labour law are so slow and the penalties so weak that a company can violate the basic trade union rights of its employees with virtual impunity. Second, a series of specific allegations of unfair labour practices against Enoxy, namely: refusal to bargain in good faith; subcontracting of mining operations to non-union companies; anti-union discrimination against union leaders, including the dismissal of the union vice-president, in an attempt to weaken the union; hiring of armed security guards to harass and intimidate union members.
3. 207. In support of its allegation that Enoxy refused to bargain in good faith with a view to renewing the 1984 collective agreement, the complainant alleges that although it had decided not to strike the Enoxy mines the company refused its offer to extend the 1984 agreement, hired a known union-busting law firm, refused overtures by international UMWA officers to meet unofficially, and terminated the final and binding stage of arbitration. In addition, Enoxy refused to continue its payments to the UMWA Pensions and Benefits Trusts, which refusal is presently the object of a lawsuit in the Columbia District Court. The complainant provides several affidavits and letters in support of its allegations in that respect.
4. 208. As regards the subcontracting and leasing to non-union coal companies, the complainant alleges that Enoxy has had such a policy for a long time in an attempt to subvert the collective agreement. The UMWA refers in particular to the award issued in 1987 by an arbitrator, who ruled that the company had violated the collective agreement by leasing out its Pevler coal lands to non-union operators, and directed Enoxy to terminate said subcontracts. The complainant provides several letters and affidavits in support of this allegation.
5. 209. Regarding the allegations of anti-union discrimination, the UMWA submits that Enoxy laid off the local union vice-president and a union committee man in an attempt to weaken the union at the Pevler complex. The company offered to reinstate the above-mentioned vice-president if he agreed not to pursue another union member's grievance; he refused and was subsequently laid off. The complainant produces an affidavit in support of this allegation.
6. 210. Finally, the UMWA complains about the paramilitary practices and tactics of the security firm hired by Enoxy in order to harass and intimidate union members. The UMWA alleges it has confirmed reports that the guards currently posted at the Pevler facility are heavily armed with automatic handguns and rifles, and have erected "bunkers" at the entrance of the mining complex. The complainant files numerous documents, brochures, press clippings, photographs, etc. in support of this allegation.

B. The Government's reply 211. In its communication of 26 October 1988, the Government summarises the events leading to the filing of the grievance against subcontracting. In October 1984, Enoxy shut down its mining operations at the Pevler complex and laid off all bargaining unit employees of the UMWA. In the summer of 1986, Enoxy entered into licensing agreements for the mining of coal at the Pevler complex with three non-union coal operators, which were required to sell their entire production to Enoxy. Two of these operators (KTK and Highwire) started production in July 1986. In June and July 1986, union officials met with Enoxy representatives to discuss the independent operators' refusal to recognise the union as representative of their employees, who remained unrepresented by the union. In August 1986 union members protested the licensing out of coal operations, through informational picketing, but no grievance was filed at that time. The grievance, filed on 29 December 1986 pursuant to the collective agreement, was heard on 12 May 1987, by an arbitrator who had to decide three issues:

• - was the grievance arbitrable in view of the emloyer's timeliness objection?
• - did Enoxy violate the collective agreement by licensing out its coal operations at the Pevler complex?
• - if so, what was the appropriate remedy?
  212. 212 In his decision rendered on 25 May 1987, the arbitrator held on the first issue that the grievance was timely since the licensing out constituted a continuing violation of the agreement, which subsisted in late December 1986 when the grievance was filed. On the merits, the arbitrator decided that the collective agreement "... bars an employer in Enoxy's position from leasing or licensing out its coal lands, when the purpose of that action is to avoid the application of the Agreement that would result if the particular leasing or licensing out arrangement were not entered into." The arbitrator concluded that a reasonable employer, in Enoxy's circumstances, would have been aware that its actions in licensing out certain coal lands to non-union operators would result in avoidance of the application of the Agreement. The arbitrator further stated that by using the licensing-out system, Enoxy was able to obtain coal mined from Pevler and still meet its contractual sales commitments without being bound by the wage rate, benefits pension contribution, seniority, safety and other terms of the Agreement. He ordered Enoxy to terminate its mining contracts with KTK and Highwire immediately and under no circumstances later than 1 July 1987.
  213. 213 On 26 June 1987, Enoxy appealed the arbitrator's decision to the United States District Court for the Eastern District of Kentucky. The case was assigned to a magistrate of the District Court, who reversed the arbitrator's finding that the violation was a continuing one, on the basis that there was no support for such a theory within the Agreement. He further concluded that the limitation provision in the Agreement was unambiguous and mandatory. The magistrate did not express his opinion on the merits of the grievance.
  214. 214 The union appealed the magistrate's recommendation to the District Court. Two judges to whom the case had been referred fell ill; a third judge of the US District Court, adopting, inter alia, the reasoning of the US Supreme Court with respect to the standard of arbitral review, upheld the magistrate's recommendation. The judge did not comment on the merits of the grievance. On 30 September 1988, the union appealed that decision to the US Court of Appeals, where it is currently pending.
  215. 215 The Government also states that Enoxy made several changes in its relationship with the union. Furthermore, without endorsing or criticising the position and allegations of either party, it contends that the laws of the United States generally comply with Conventions Nos. 87 and 98, and protect the freedom of association of union members.
  216. 216 As regards the allegations that the labour laws of the United States are too slow or the penalties too weak to be effective, the Government replies that its legislation establishes expeditious appeal procedures through the court system. It seems that the union is not unhappy with the length of time it took to obtain a decision, but rather with the decision itself; indeed, the union is now the appellant before the Court of Appeals. Furthermore, the penalties provided by the legislation are adequate; had the appellate Court affirmed the arbitrator's decision, it would have ordered Enoxy to terminate its subcontracts, i.e. the remedy desired by the union.
  217. 217 Concerning the alleged refusal to bargain in good faith, the Government submits that labour negotiations are voluntary, and that a party is not required to agree to a collective agreement if it finds its terms unacceptable. Sections 8(a)(5) and 8(b)(3) of the National Labor Relations Act (NLRA) provide that employers and unions must bargain in good faith. The union's recourse would have been to file a charge of unfair labour practice with the National Labor Relations Board (NLRB), but it apparently chose not to do so.
  218. 218 As regards the allegation that Enoxy discriminated against the union by subleasing its coal operations to non-union companies in order to subvert the collective agreement, the Government replies this kind of action also constitutes an unfair labour practice under sections 8(a)(3), 8(a)(5) and 8 d) of the NLRA. Here again, the union's recourse would have been to file a charge of unfair labour practice with the NLRB, which it did not. The union decided to proceed before the arbitrator, who ruled in its favour; however two appellate courts reversed the arbitrator's award because, in their opinion, the grievance was untimely. The case is now pending before the US Court of Appeals (Sixth Circuit), which may affirm or reverse the lower court's decision. These appellate procedures are fair and reasonable, and are available to both parties.
  219. 219 The Government further submits that the union had the same remedy with respect to its fourth and fifth allegations (unlawful lay-off of union officials, harassment and intimidation of union members), to wit, unfair labour practice charges filed with the NLRB, since such acts are specifically prohibited by sections 7, 8(a)(1), 8(a)(3) and 8(a)(4) of the NLRA. The union has not done so to date.
  220. 220 The Government concludes that the union's complaint fails to provide any specific information to support its contention that the United States labour laws are inadequate to safeguard the principles of freedom of association. The labour laws of the United States provide more than adequate procedures and remedies to correct the violations alleged in this case; it is only because of the particular circumstances of this case that these remedies were not granted to the union.

C. The Committee's conclusions

1. 221. The Committee notes that this case raises two sets of allegations. First, the UMWA complains against various unfair labour practices by Enoxy, a subsidiary of Ente Nazionale Idrocarburi, at its Pevler mining complex in Kentucky. Secondly, the complainant argues that the National Labor Relations Act does not protect workers adequately against these violations of their fundamental trade union rights. For its part, the Government submits that its labour legislation and practices, both generally speaking and in the particular circumstances of this case, are in compliance with ILO Conventions Nos. 87 and 98. Furthermore the Government stresses that it does not endorse or criticise the positions and allegations of either party, but that its reply addresses the adequacy of United States laws to protect union members' freedom of association rights.
2. 222. As pointed out in the Government's reply and as the Committee noted in the BASF case (256th Report, Case No. 1437, para. 234), the NLRA provides a series of procedural safeguards for the filing and hearing of unfair labour practice charges. The complainant unions in the BASF case, which involved similar allegations, did file such charges to the NLRB; on some issues the Board ruled in favour of the union, and on others it upheld the employer's position. This prompted the Committee to state that the very fact that the complainant's affiliates continued to use - and win with - the NLRB procedures indicated that the system was not entirely without the confidence of the workers' organisations involved (ibid., para. 234).
3. 223. The major difference which distinguishes the present complaint from the BASF case is that, for some unexplained reason, the UMWA did not file unfair labour practice charges with the NLRB within the six months limit provided by the NLRA. Although the Committee's competence to examine allegations is not subject to the exhaustion of national procedures, it has considered that where national legislation provides for appeal procedures before the courts or independent tribunals, and these procedures have not been used for the matters on which the complaint is based, it should take this factor into account when examining the complaint (Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO, 3rd ed., 1985, paras. 31 and 33). Since one of the main allegations is that the remedies provided by the legislation are too slow and the penalties too weak to be effective, it might be noted that section 10 m) of the NLRA gives priority to unfair labour practice charges filed under section 8 over all other cases, except those of like character, and that section 10 c) of the same Act empowers the NLRB to issue cease and desist orders and to take such affirmative action, including reinstatement of employees with or without back pay, as will effectuate the policies of the Act. In the absence of further evidence, the Committee considers that the statute in question establishes safeguards for the filing and hearing of unfair labour practice charges, which the complainant apparently chose not to pursue.
4. 224. This being said, however, the Committee points out with concern that this is the fourth recent complaint lodged - by different complainants - against the United States on the grounds of anti-union tactics and unfair labour practices, in particular through abuse of the legislative provisions on recognition of collective bargaining agents and on procedures leading to conclusion of collective agreements. In the BASF case for instance (loc. cit., paras. 231 to 237, approved in May-June 1988), the Committee recalled that subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his employment on the grounds of union membership or activities.
5. 225. The present case involves serious allegations, most of which are related to anti-union discrimination practices. The usual practice of the Committee has been not to make any distinction between allegations levelled against governments and those levelled against persons accused of infringing freedom of association, but to consider whether or not, in each particular case, a government has ensured within its territory the free exercise of trade union rights (Digest, loc. cit., para. 25, and cases cited). Furthermore, as mentioned by the Committee of Experts (General Survey, ILO, 1983, paras. 256-280), experience shows that the existence of basic legal standards prohibiting acts of anti-union discrimination is not enough if they are not accompanied by effective procedures to ensure their application in practice. Complaints against acts of anti-union discrimination should normally be examined by national machinery which, in addition to being speedy, should not only be impartial but also be seen to be such by the parties concerned, who should participate in the procedure in an appropriate and constructive manner. As long as protection against anti-union discrimination is in fact ensured, methods adopted to safeguard workers against such practices may vary from one State to another; but if there is discrimination, the government concerned should take all necessary steps to eliminate it, irrespective of the methods normally used (Digest, loc. cit., paras. 570-571).
6. 226. Coming back to the specific allegations of unfair labour practices made here, the Committee considers that a number of actions by Enoxy, taken as a whole and in their general context, certainly cannot be said to be conducive to good industrial relations. The complainant submits - and the Government acknowledges - that Enoxy made several changes in its relationship with the union by: refusing to extend the Agreement's 28 January 1988 expiration date to a later date when a new contract could be negotiated; refusing to make payments to the union's 1950 and 1974 Pension Trusts and to the 1950 and 1974 Benefits Trusts; and licensing out its Pevler coal operations. In view of these circumstances, and while recognising that the question as to whether or not one party adopts an amenable or uncompromising attitude towards the other party is a matter for negotiation between the parties within the law of the land, the Committee recalls the importance it attaches to the principle that employers and trade unions bargain in good faith to come to an agreement. Furthermore, the Committee recalls that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected (Digest, loc. cit., para. 70).
7. 227. As regards the arbitral and legal process followed with respect to the grievance against Enoxy's subcontracting policy, the Committee notes that the arbitrator seized with the grievance dismissed the employer's timeliness objection, reasoning that the alleged violation was of a continuous nature; he ruled in the union's favour on the merits, concluding that by using a licensing-out system, Enoxy was able to obtain the coal mined from the Pevler complex without being bound by the terms of the collective agreement. The arbitrator ordered Enoxy to terminate its mining subcontracts.
8. 228. The employer appealed and a magistrate of the US District Court recommended that the arbitrator's award be set aside, concluding that his finding on timeliness was not supported by the unambiguous and mandatory limitation provisions of the collective agreement. After additional delays due to the illness of two judges to whom the magistrate's report had been referred, a judge of the US District Court affirmed the magistrate's recommendation. It should be noted that the magistrate and the judge of the District Court did not express their opinion on the merits of the case. The whole process between the arbitrator's award and the judge's decision thus took approximately 15 months; since the union has appealed to the US Court of Appeals on 30 September 1988, further delays are to be expected. The final disposition of this grievance will not be known until all avenues of appeal are exhausted. The Committee regrets the excessive length of the appeals procedure used by the complainants. Since subcontracting accompanied by dismissal of union leaders or members can constitute a violation of the principle that nobody should be prejudiced in his employment on ground of union membership or activities, the Committee requests the Government to keep it informed on the final decision issued with respect to the subcontracting grievance filed by the complainant union.