Rapport définitif - Rapport No. 253, Novembre 1987

1. 42. The International Association of Machinists and Aerospace Workers (IAM) presented a complaint of violations of trade union rights against the United States in a communication dated 16 March 1987. By a letter dated 6 May 1987, the American Federation of Labor and Congress of Industrial Organisations (AFL-CIO) associated itself with this complaint. The Government provided its observations in a communication dated 14 September 1987.
2. 43. 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 complainant's allegations

1. 44. In its communication of 16 March 1987, the IAM alleges anti-union practices by Norsk Hydro Aluminium Inc. and claims that the United States laws allow companies to hire anti-union consultants for the sole purpose of denying workers freedom of association.
2. 45. According to IAM a labour relations consultant of Norsk Hydro stated, before workers joined IAM, that even if they became organised they would never get a collective bargaining agreement. When the workers voted in IAM in a representation election in March 1984, the company carried out this threat by drawing out collective bargaining negotiations for nearly a year. IAM's position that the employer was engaged in unfair labour practices by stalling the negotiations and refusing to prepare in writing and execute the agreement already reached verbally, was put forward in a complaint by the regional director of the National Labor Relations Board (NLRB) dated July 1985. The Administrative Law Judge of the NLRB decided in February 1986 that the employer had not engaged in unfair labour practices (a copy of this decision is supplied). Before this decision was handed down, continues the IAM, in April 1985 a leader of the union's negotiating team and former local union President, Mr. A. Williams, applied for the decertification of the union and according to IAM, was rewarded for this by prompt promotion to a supervisory position.
3. 46. According to the IAM, because of the year-long delaying tactics used by the company, the attrition, hiring practices and departure of workers due to poor working conditions, the original workers who had requested and won recognition for collective bargaining purposes were effectively denied the opportunity of enjoying basic trade union rights. They thus lost their recognition status and the decertification proceedings went ahead.

B. The Government's reply

1. 47. In its communication of 14 September 1987, the Government states that the laws of the United States are generally in compliance with Convention No. 98 and that its labour practices, and specifically the conduct of this dispute, are in accordance with that Convention.
2. 48. It summarises the events leading to the filing of the unfair labour practices charge with the NLRB against Norsk Hydro. In April 1984 the IAM was certified as the exclusive bargaining representative for the employees of Norsk Hydro and from May 1984 to March 1985 the union and management met 24 times in an effort to negotiate a collective agreement. According to the Government, the parties agreed on a wide range of issues but were blocked on others, including wages. It appears that on 28 March 1985, the union announced that it would take Norsk's final offer on wages back to the membership for ratification; 20 per cent of the membership ratified the agreement after a vote but the parties failed to sign the ratified agreement. On 29 April 1985, Mr. A. Williams, a former President of the local union, filed a petition to have it decertified and a few months later the employer received a decertification petition signed by 60 of its employees. It accordingly wrote to the union that it was withdrawing recognition pursuant to the National Labor Relations Act because it had a good faith doubt as to whether IAM represented a majority of its members.
3. 49. On 10 May 1985, continues the Government, IAM filed an unfair labour practice charge against Norsk Hydro with the NLRB which, in accordance with administrative procedures, was investigated by an agent of the NLRB. This led to the issue of a formal complaint in July alleging that Norsk Hydro, having reached full and complete agreement with the bargaining agent, had refused to execute a written agreement embodying the contract. In August the complaint was amended to include an allegation that the employer's withdrawal of recognition amounted to an unfair labour practice under the National Labor Relations Act. The Government stresses that during the three-day hearing of this complaint before the Administrative Law Judge all parties were represented and were able to call, examine and cross-examine witnesses and introduce documentary and other evidence. The Government attaches a copy of the February 1986 decision dismissing the complaint. As neither party exercised their right of appeal by filing exceptions to this decision, the NLRB adopted it as its own.
4. 50. The Government denies the complainant's allegations that the laws of the United States allow companies to hire consultants in order to deny workers freedom of association. It points out that section 7 of the National Labor Relations Act protects the rights of employees "to self-organisation, to form, join or assist labour organisations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ...". The Government stresses that the NLRB complaint did not include any allegation that Norsk Hydro's consultant had infringed section 7 or committed an unfair labour practice by denying workers these rights. It argues that nothing in Convention No. 98 prohibits companies from hiring labour consultants to assist them in labour negotiations.
5. 51. As regards the allegation that the employer did not bargain in good faith because it failed to sign the completed agreement, the Government states that Convention No. 98 covers voluntary negotiations and requires a good faith approach to bargaining. It also notes that the question of whether one party adopts an amenable or uncompromising attitude towards the demands of the other party is a matter of negotiation between them. It recalls that sections 8(a)(5) and 8(b)(3) of the National Labour Relations Act have a similar requirement that both parties bargain in good faith, but do not require a party to agree to a contract if its terms are unacceptable. Moreover, the Government emphasises that, after a lengthy hearing, the NLRB judge found that the parties had not come to a meeting of the minds concerning wages and thus the employer "had no obligation to execute the purported agreement". (NLRB decision, page 17.)
6. 52. As regards the decertification issue, the Government states that its understanding of Convention No. 98 is that a person's membership of a union is voluntary, and that nothing in any ILO Convention prevents a country from requiring that a union represent a majority of its members in order to be recognised as their exclusive bargaining representative. The Government points out that after the NLRB judge looked at the allegation of unlawful withdrawal of recognition, he found that the employer's action had been "based on objective evidence supporting (its) asserted good faith doubt of the union's majority status". (NLRB decision, page 21.) The judge also referred to the resignation of the union President and the lack of any observable union activity as legitimate indicators that IAM no longer represented a majority of its members.

C. The Committee's conclusions

1. 53. The Committee notes that the allegations in this case fall into two categories: first, the complainant claims that the employer, Norsk Hydro, engaged in specific unfair labour practices by refusing to execute a collective bargaining agreement and by exercising its right to withdraw recognition after receiving a petition from its employees to this effect; secondly, and more generally, the complainant alleges an anti-union climate in the undertaking evidenced by hiring practices and delaying tactics.
2. 54. The Committee takes particular note of the fact that the specific charges against Norsk Hydro were dismissed by the Administrative Law Judge of the National Labor Relations Board after a lengthy hearing in which the guarantees of due process were respected, and that no appeal was lodged against this dismissal by either of the parties.
3. 55. From the copy of the February 1986 dismissal decision made available to it, the Committee notes that, on the facts, no agreement had been reached on the wage issue at the final formal bargaining session on 28 March 1985. The employer's subsequent refusal to sign a purported agreement is therefore not seen as an act of bad faith. As in previous cases concerning this type of allegation, the Committee would recall the principle that, although both employers and trade unions should bargain in good faith, whether one party adopts an amenable or uncompromising attitude towards the demands of the other party is a matter for negotiation between the parties.
4. 56. As regards the withdrawal of recognition, the Committee notes that the NLRB Judge found that the employer had acted within the law. The Committee, when considering systems which afford most representative unions preferential or exclusive bargaining rights, has stated that the determination of representativity should be based on objective and pre-established criteria (208th Report, Case No. 981 (Belgium), para. 113). It has also said that a system drawing a distinction between the most representative trade union and other unions should not have the effect of preventing minority unions from functioning or at least having the right to make representations on behalf of their members and to represent them in cases of individual grievances (230th Report, Case No. 1158 (Jamaica), para. 99). In the present case the Committee notes that the withdrawal of recognition of the union proceeded on a petition by a number of employees who claimed that the union did not represent the majority of the workers. The complaint against this withdrawal was fully investigated by the Administrative Law Judge who dismissed it, finding that objective evidence supported the good faith doubt of the company regarding the union's majority status. Furthermore, no evidence has been advanced by the complainant to substantiate its allegation that this withdrawal denied the workers concerned their basic trade union rights. The Committee accordingly considers that this aspect of the case does not call for further examination.
5. 57. On the other hand, as regards the more general aspect of the complaint alleging an anti-union climate in the undertaking, the Committee considers that by, for example, exploiting a series of possibly avoidable delays and misunderstandings, and by prolonging unduly the negotiations for a collective agreement, the company's attitude was not conducive to any kind of final agreement being reached following the negotiations.