Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 211, Novembre 1981

1. 342. The complaint of the World Federation of Trade Unions (WFTU) is contained in a letter dated 12 August 1981; it supplied additional information in a communication of 21 September 1981. The complaint of the International Confederation of Free Trade Unions (ICFTU) is contained in a letter dated 2 September 1981 and was supported by the American Federation of Labour and Congress of Industrial Organisations (AFL-CIO) in a communication of the same date. The AFL-CIO, in its communication expressly disassociates itself from the WFTU complaint. The Government replied in communications dated 20 October and 5 November 1981.
2. 343. The United States of America have not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), or the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants' allegations

1. 344. In its letter of 12 August 1981, the WFTU alleges that during a strike by air traffic controllers in August the Government dismissed more than 12,000 workers, imposed on trade unions $100,000 an hour fines and jailed the strike leaders. It further states that 72 members of the union are under "court persecution" and that military controllers were used to substitute for those on strike. In its letter of 21 September 1981, the WFTU ads that the Federal Aviation Authority (FAA) decertified the Professional Air Traffic Controllers' Organisation (PATCO) on the grounds of its strike thus terminating its legal existence. It states that the courts had brought criminal charges against 24 union leaders and had issued over 40 injunctions, and that the Government had put strikers in chains and leg shackles. Lastly, it alleges that the Government now makes every federal employee sign a no-strike clause, contrary to the guarantees set out in the ILO Conventions on trade union rights. The WFTU asks for the re-employment of the dismissed workers, withdrawal of the repressive measures and harassment of PATCO and recertification of PATCO.
2. 345. In its letter of 2 September 1981, the ICFTU alleges infringements of Conventions Nos. 87, 98 and 151 by the Government during the PATCO dispute. It gives a background of the facts as follows: on 22 June 1981, a tentative contract was signed between PATCO and FAA subject to ratification by the union's membership; the membership rejected it by a 95 per cent to 5 per cent vote and the union attempted to negotiate further its original proposals; upon the Government's refusal to resume meaningful negotiations, more than 12,000 employees walked off their jobs on 3 August; the same day the Government announced that it would terminate the employment of those workers failing to return to their jobs by 5 August; on 5 August the Government began dismissing those who had not done so; on 9 August it reaffirmed its position of no negotiation with PATCO and has since repeatedly refused requests for mediation and conciliation.
3. 346. The ICFTU states that by refusing to negotiate with and recognise the union after the walk-off and before the matter was adjudicated properly, the Government decertified PATCO which could be considered as being tantamount to dissolution by administrative action. It also states that the administration of the FAA (the only body authorised by law to bargain on certain safety issues which were included in the union's demands) refused to attend any bargaining session before or after 22 June and that the Government refused to bargain at all after 3 August. This, it claims, is a violation of the right to collective bargaining, which is aggravated by the Government's statement of intention to bargain directly with those employees who did return to work.
4. 347. According to the ICFTU, FAA supervisors are advising union members whose contracts have been terminated to appeal the terminations without union representation; government personnel are stating that internal, informal administrative decisions will control who is rehired, are telling union members to testify against the union to avoid being terminated, and are threatening physical violence against union members if they report intimidating communications to their union. Furthermore the ICFTU alleges that the Government is prosecuting cases against the union in approximately 70 courts throughout the country, rather than in one consolidated action in an attempt to overpower its legal capacities. Among other acts of alleged anti-union discrimination, the ICFTU lists: the 75 criminal indictments against individual union members for their alleged participation in the walk-off; the Government's request (which was denied) for imprisonment of the union's executive board for failure to order members back to work; the Government's request for excessive fines; the Government's action resulting in the imprisonment of five union members, one in shackles; other government agencies victimising union members' e.g. the Department of Housing and Urban Development will no longer allow them to utilise the Government's mortgage protection programme; the Government has attempted to prohibit non-violent picketing by the union.
5. 348. Lastly, the ICFTU alleges that the absence of a right to strike for the union was not offset by adequate guarantees to safeguard the workers' interests, this limitation being discriminatory in view of the fact that airline pilots and other organised groups in the air traffic sector do have that right.

B. The Government's reply

1. 349. In its communication of 20 October 1981, the Government explains that the seven month-long negotiations with PATCO involved approximately 12 representatives of the FAA (the Director of Labour Relations representing the Administrator of the FAA), about 12 from PATCO, and the Acting Director and an Associate of the Federal Mediation and Conciliation Service (FMCS) its view of the events is as follows: in January 1981 PATCO presented a set of 99 proposals and the FAA presented 15 counter-proposals; almost half of PATCO's proposals fell outside the FAA's negotiating jurisdiction (limited under 5 U.S.C. 7103(a) (12 14) and 5 U.S.C. 7106 to personnel policies and working conditions) but the FAA did not foreclose the possibility of seeking new legislation to cover the demands which it could not negotiate; despite lengthy discussion agreement was reached on only four proposals; PATCO walked away from the bargaining table on 28 April and returned from its annual Convention with an ultimatum that if by 22 June the FAA had not produced an acceptable settlement, it would go on strike; on 22 June the President of PATCO announced that he had won a "fair contract" but the Executive Board and membership rejected it; on 31 July PATCO gave the Government a 67-hour strike ultimatum to settle the dispute, but itself resubmitted its original proposals which amounted to a sum 17 times the amount agreed upon in the June settlement; the Secretary of Transportation repeatedly requested PATCO to extend its strike deadline but even the FMCS representative to the negotiations could not get PATCO to offer rearrangements or suggestions concerning the June settlement; the strike commenced on 3 August.
2. 350. According to the Government, once the strike began, it obtained, in the District Court for the District of Columbia, a temporary restraining order against PATCO, its President and 10 other union officials so as to minimise the potential danger to public safety in the airways and bring the strike to an end as quickly as possible. The order was granted because US law (18 U.S.C. 1918) prohibits strikes by federal employees and because these employees had signed a no-strike oath. PATCO failed to comply with the injunction and, on 10 August, the Court imposed the fines for contempt of court set out in its order, i.e. $1,000 per day for the President of the union and a sliding scale of $250,000 to $l,000,000 per day for the union itself, but it refused further civil remedies sought by the Government namely confinement of the President. The Government points out that in the United States a court may assess fines independent of the funds available to the defendant. Because PATCO refused to comply with this order, the Government concluded that effective relief could only be achieved by seeking restraining orders against the 12,000 striking controllers in local federal courts across the country, and 100 further temporary restraining orders were obtained. The Government explains that in two civil contempt cases the judges went beyond the Government's request and imposed jail sentences on five union members. In one of them, in accordance with the customary practice of that particular court, the defendant union official was taken to jail in restraints. According to the Government, in both of these cases the defendants appeared in court, were represented by counsel and were given a choice of complying with the court's order or going to jail; the defendants chose to go to jail but were freed within a few days at the request of the Government. It states that as of 7 October 1981, only 63 air traffic controllers have been indicted for criminal violation of the no-strike law and 70 further cases are proceeding.
3. 351. The Government continues that in a private action on 3 August the Air Transport Association (ATA) went to court to seek a contempt citation against PATCO for violating a 1970 private injunction against further strikes. Although PATCO is attempting to have this injunction vacated, to date it has been unsuccessful, and the District Court for the Eastern District of New York fined PATCO $100000 per hour (twice what the ATA sought) for the duration of the strike plus an additional fine of $25,000 per day; when judgements totalling $4.5 million in fines had been entered the judge terminated them.
4. 352. The Government states that a third type of action was taken on 3 August: since strikes against the Government are considered as unfair labour practices (5 D.S.C. 7116(b)(7)), the FAA filed such a charge with the Federal Labor Relations Authority (FLRA) - the independent quasi-judicial agency of the Federal Government which regulates labour-management relations in the federal public sector - calling on it to revoke PATCO's exclusive recognition status. On 10 and 11 August hearings were held before the FLRA Chief Administrative Law Judge, all parties being present and represented by counsel. After that judge's recommendation for revocation was handed down, oral argument was heard by the full FLRA but as of 9 October 1981 the case had not been decided. The Government points out that the FLRA's decision can be appealed to the Court of Appeals. On 3 August the FLRA, at the FAA's request, had also obtained a temporary restraining order against PATCO.
5. 353. According to the Government, on 9 August, PATCO filed an unfair labour practice charge With the FLRA alleging that the FAA had refused to bargain in good faith; however, the case was dismissed on 25 August and PATCO's appeal was rejected on 21 September.
6. 354. The Government states that, as federal law specifically prohibits striking employees from accepting or holding positions with the Government (5 U.S.C. 7311), PATCO and all individual controllers were repeatedly warned that controllers participating in an illegal strike could be dismissed. When the strike commenced the President of the United States, on his own initiative, allowed the strikers a period of 48 hours' grace to return to work and the Department of Transportation interpreted this deadline as liberally as possible. On 6 August the FAA started sending out notices of proposed removals to the strikers and, after the 7-day period of response had elapsed, issued dismissal letters informing the employee of his right to appeal within 20 days to the Merit Systems Protection Board (MSPB) from which there is an appeal to either the US Court of Claims or Court of Appeal. Controllers who demonstrate a valid reason for their absence from work during the strike may be returned to their jobs by the FAA or the MSPB. Accordingly, the Government considers that the dismissal of the strikers was not wrongful.
7. 355. In reply specifically to the WFTU's allegation concerning the right to strike the Government considers that it provides adequate guarantees to safeguard the interests of federal workers who do not enjoy this right: two representatives of the FMCS (the independent agency set up to assist parties to labour disputes in industries affecting commerce to settle such disputes through conciliation and mediation) were present during all the negotiations at the request and with the approval of both parties; PATCO was at all times during the negotiations able to lodge a "negotiability appeal" with the FLRA (5 U.S.C. 7117) asking it to overrule the Government's refusal to negotiate specific union demands which the Government considers as non-negotiable at law, but PATCO did not exercise this appeal; PATCO also at any time could have had recourse to binding arbitration settlement through the Federal Service Impasses Panel (5 D.S.C. 7119) - an entity established within the FLRA to provide assistance in resolving negotiation impasses on items that are already determined to be negotiable where the parties have exhausted all other means of settling the dispute i.e. voluntary arrangements, the FMCS or any other third-party mediation.
8. 356. As regards the WFTU's allegation that 72 union members are under "court persecution" the Government stresses that the 70 odd members of PATCO still being prosecuted for violating the temporary restraining orders enjoy all the guarantees of due process and that this can in no way be seen as "persecution".
9. 357. Regarding the WFTU's allegation concerning the use of military controllers' the Government states that the number of military staff, after the initial call of 150, rose to 370 by 7 August and that there are currently 800 serving as back-ups in civilian airports. It considers that the use of military controllers during the emergency is entirely consistent with the principle of freedom of association whereby, in the case of an unlawful strike in an essential service the Government may deploy such personnel in the interests of public welfare and safety.
10. 358. In reply to the ICFTU's allegation of dissolution of the union by administrative action, the Government refers to the principle that dissolution or decertification of a union should only be effected through judicial action and only if there is provision for deferring the effective date of the decertification order until after opportunities to appeal to judicial bodies have been exhausted. It states that PATCO raised this issue of de facto decertification in its unfair labour practice charge filed with the FLRA, which first by the FLRA Regional Director and then by the General counsel was dismissed. According to the Government, until formal and final decertification is ordered, PATCO is able to exercise its rights as the representative of employed air controllers and still enjoys exclusive bargaining status. Moreover, it points out that the request for decertification of PATCO is being handled under the normal procedure: a hearing before the FLRA whose decision can be appealed to the Court of Appeals for review. As regards the alleged failure to bargain raised by the ICFTU, the Government points out that the Administrator of the FAA was represented by the Director of Labor Relations of the FAA at all negotiating sessions, this representative being fully empowered to conclude an agreement with PATCO. In fact he was a signatory to the 22 June agreement. As regards the refusal to bargain after the commencement of the unlawful strike the Government claims that this was not an anti-union action because PATCO was provided with adequate safeguards to offset the absence of the right to strike.
11. 359. As for the ICFTU's allegation that FAA supervisors are contacting and threatening PATCO members and are thus interfering in the union's affairs, the Government states that this is unsubstantiated. It claims that any individual has the right to bring such allegations before the FLRA, but that no one has done so to date. It further points out that the union members were dismissed under procedures strictly outlined in law and may be reinstated by the Merit Systems Protection Board, not by internal and informal administrative decisions, which are prohibited. Regarding the allegation that the Government is attempting to overpower the legal capabilities of the union, it points out that it only commenced the civil actions against individual strikers because PATCO had ignored the 3 August temporary restraining order. It states that PATCO has asked the Court to consolidate the cases but no decision has yet been handed down. The Government has opposed PATCO's request because at the present time the cases primarily involve regulation of picketing at individual facilities by former FAA employees' which is a matter of a local nature. As regards the cases concerning criminal indictment, the Government points out the United States law prohibits consolidation of criminal cases. In this connection, the Government denies the allegation that it has attempted to prohibit all picketing, and states that in the event of an illegal strike, non-violent picketing may, by law, be regulated by the local district courts.
12. 360. As regards the ICFTU's allegation of anti-union discrimination by other government agencies, the Government explains that the Department of Housing and Urban Development, on 20 August, announced that former controllers would be considered for mortgage protection, if and when they requested it, on the same criteria as any other individuals seeking such relief. However it also noted that striking controllers might not meet all the criteria since "participation in an illegal strike may not be considered [as circumstances] beyond the individual's control" which have forced him to default on his mortgage payments.
13. 361. Lastly, the Government denies the ICFTU claim that air traffic controllers should be exempted from the legal restrictions on the right of federal employees to strike because other organised groups in that sector do have this right. It points out that pilots and other such groups are not government employees, and that any change regarding the right of air traffic controllers to strike would have to be made by Congress, not by the Executive.
14. 362. In its letter of 5 November 1981, the Government sends further information regarding the status of legal proceedings related to PATCO. According to the Government, on 22 October 1981, the three-member FLRA issued its decision to uphold the recommendation of the Chief Administrative Law Judge and PATCO filed an appeal against this recommendation. At the same time it filed an emergency motion for a stay of the FLRA's revocation of its exclusive recognition status, which was granted by the Court until 27 October. The Court has indicated that a three judge panel would hear the case as expeditiously as possible. The Government further states that PATCO's request for consolidation of the court actions pending against it was refused on 20 October 1981.

C. The Committee's conclusions

1. 363. This case concerns allegations that during the air traffic controllers' strike initiated in August 1981 the Government violated the ILO Conventions on freedom of association in the following manner: it did not provide sufficient guarantees to offset the legislative prohibition of the right of federal employees to strike; it committed various anti-union acts (criminal and civil court actions; imposition of excessive fines; imprisonment of five striking unionists' one in chains; dismissal of over 12,000 strikers; intimidation of and discrimination against unionists); it used military controllers to substitute for those on strike; it refused to bargain with the air traffic controllers' union which could be considered to be tantamount to dissolution by administrative authority, and it de-certified the union.
2. 364. The Committee considers that the nature of the present case is mainly distinguished by the fact that us legislation prohibits strikes by federal employees, air traffic controllers being included in this category, as they are employed by the FAA an agency of the United States Department of Transportation. The relevant sections of the Federal Service Labor-Management Relations Statute and the Crimes and Criminal Procedures Statute read as follows:
3. 7311. An individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he-
4. [...]
5. (3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or
6. (4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia.
7. 1918. Whoever violates the provision of section 7311 of title 5 that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he
8. [...]
9. (3) participates in a strike, or asserts the right to strike, against the Government of the United States or the government of the District of Columbia; or
10. (4) is a member of an organization of employees of the Government of the United States or of individuals employed by the government of the District of Columbia that he knows asserts the right to strike against the Government of the United States or the government of the District of Columbia;
11. shall be fined not more than $l,000 or imprisoned not more than one year and a day, or both.
12. 365. The Committee would point out as it has in the past that although industrial action, such as the right to strike by workers and their organisations, is generally recognised as a legitimate means of defending their occupational interests, this right could be restricted or even prohibited in the civil service or in essential services in the strict sense of the term i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. The Committee has, for instance, considered that, on this criterion, the hospital sector is an essential service. In another case, for example, the Committee considered that it was not established in a satisfactory way that the Mint, the government printing service and the state alcohol, salt and tobacco monopolies constitute genuinely essential services. The Committee in this case considered that, although it might be said that a stoppage of work by the workers concerned in these undertakings could cause public inconvenience, it did not appear possible to consider that it could bring about serious public hardship. Applying this criterion to the particular circumstances of the present case, the Committee considers that the withdrawal of services by air traffic controllers could endanger the existence or well-being of a very large number of aircraft passengers and flying staff. It is accordingly of the opinion that the exclusion of this particular category of public employees from the right to strike does not constitute a violation of the principles of freedom of association.
13. 366. Nevertheless, the Committee has always considered that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate them for this limitation, on their freedom of action, for example, by adequate impartial and speedy conciliation and arbitration procedures. The Committee would also refer in this respect to the Labour Relations (Public Service) Convention, 1978 (No. 151), Article 8 of which provides that the settlement of disputes in connection with the determination of terms and conditions of employment shall be sought, as may be appropriate to national conditions, through negotiation between the parties or through independent and impartial machinery, such as mediation conciliation and arbitration, established in such a manner as to ensure the confidence of the parties involved. The Committee notes that in the present case, according to the Government adequate guarantees existed for the air traffic controllers through the continuous presence of the Acting Director and an, associate of the Federal Mediation and Conciliation Service throughout the negotiations, through the right to lodge a "negotiability appeal" with the Federal Labor Relations Authority and through the right to request binding arbitration before the Federal Service Impasses Panel of the FLRA. The Government points out that the union did not make use of either of these procedures, but that it did file an unfair labour practice charge with the FLEA, alleging that the Government had refused to bargain in good faith, which was dismissed at first instance and on appeal.
14. 367. The Committee has examined the relevant provisions of the Federal Service Labor-Management Relations Statute (Chapter 71 of Title 5 of the US Code). It notes that these provisions provide, in particular that the FMCS shall provide services and assistance to agencies and exclusive representatives in the resolution of negotiation impasses and that it is for the FMCS itself to determine under what circumstances and in what manner such assistance shall be provided; that, where the services of the FMCS fail to resolve a negotiation impasse, either party may request the Federal Service Impasses Panel to consider the matter; and that, as an alternative, the parties may agree to adopt a procedure for binding arbitration of the negotiation impasse if such a procedure is approved by the Panel (5 U.S.C.7119). The Committee has also noted the provision under which, if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may within a period of 15 days appeal this allegation to the FLRA (5 U.S.C.7117).
15. 368. The Committee considers that, in the present case, the requirement that services and assistance be provided to the bargaining partners by the FMCS with a view to overcoming negotiation impasses were satisfied through the continuous presence throughout the bargaining process of two FMCS representatives. The fact that the negotiations between the FAA and PATCO nonetheless ultimately broke down alters nothing in this regard. Furthermore, from the evidence available to the Committee it appears that PATCO did not choose to avail itself of any of the above-mentioned procedures, i.e. a "negotiability appeal" to the FLRA, referral of the case to the Federal Service Impasses Panel or recourse to binding arbitration. Whilst recognising the fact that recourse to binding arbitration could have been had only with the agreement of the FAA and with the approval of the Panel, the Committee is bound to note that nothing would have prevented PATCO from proposing recourse to arbitration. In all these circumstances, the Committee does not find itself in a position to uphold the allegation that adequate procedures do not exist to safeguard the interests of workers not enjoying the right to strike.
16. 369. As regards the allegations concerning action taken against the union and individual unionists during the strike, the Committee notes the Government's explanation that the judicial authorities imposed fines (one case quoted is a private action having nothing to do with the Government) and briefly imprisoned five unionists for contempt of court orders duly obtained by the Government. It notes the Government's statement that the dismissals were carried out in accordance with the legislation in force and can be appealed to judicial authorities. It notes finally that the Government considers that the allegations of intimidation and interference are unsubstantiated and that the purported example of anti-union discrimination in the government mortgage protection scheme is factually untrue. In view of the wide variety and the extreme severity of the action taken against the striking air traffic controllers the Committee would recall that it has stated in the past that the application of excessively severe sanctions to public servants on account of their participation in a strike is not conducive to the development of harmonious industrial relations. It would ask the Government to give consideration to and inform it of any action taken or envisaged towards the reinstatement of dismissed controllers, towards a waiving or reduction of the fines imposed and expresses the hope that no controller will be deprived of assistance under the government mortgage protection scheme on the grounds solely of his participation in the air traffic controllers' strike.
17. 370. As for the use of military controllers, the Committee notes the Government's statement that this strictly temporary measure was necessary to minimise the potential danger to public safety in the airways and to bring the strike to an end as quickly as possible n the present case, the Committee has already stated its opinion that the withdrawal of services by air traffic controllers could endanger the existence or well-being of very large numbers of aircraft passengers and flying staff. It further considers that the use of military controllers as an emergency measure to maintain the safety of the air travelling public was in the present case the only option open to the Government beyond that of closing down all air traffic. The Committee can therefore not uphold the allegation that the action taken by the Government in this regard constituted a violation of the principles of freedom of association. It notes the Government's statement that the measures in question are of a strictly temporary nature, expresses the hope that the situation will in a near future return to normal, and requests the Government to inform the Committee of any developments in this direction.
18. 371. Regarding the allegation of dissolution by administrative authority and de-certification of PATCO, the Committee notes that the proceedings for de-certification of PATCO are still pending before the competent judicial authorities. It would ask the Government to inform it of the outcome of the case. The Committee would nevertheless recall the importance that it attaches to the principle that employers, including governmental authorities in their capacity of employers of wage earners, should recognise for collective bargaining purposes the organisations representative of the wage earners employed by them. It therefore expresses the hope that the Government will in this regard see its way to re-opening a dialogue with PATCO.