Report in which the committee requests to be kept informed of development - Report No 248, March 1987

Case No 1130 (United States of America) - Complaint date: 16-APR-82 - Closed

1. 273. The Committee has already examined this case in depth on three previous occasions, the most recent being at its February 1984 meeting when it presented definitive conclusions to the Governing Body (233rd Report, paras. 137 to 160, approved by the Governing Body at its 225th Session (February-March 1984)).
2. 274. Subsequently, in its 236th Report, paragraph 22 (approved by the Governing Body at its 227th Session, November 1984), the Committee noted certain further information provided by the Government and requested it to continue to keep it informed of any action taken affecting the workers concerned.
3. 275. Since then, the case has been adjourned due to the late receipt of relevant information and observations from both the complainant organisation and the Government. The sequence of correspondence is as follows: the Capitol Employees Organising Group (CEOG) sent further information and allegations in communications dated 9 March, 19 June and 19 July 1985 and 11 April 1986. The Government transmitted its replies in communications dated 16 May and 23 October 1985, 7 February, 6 May and 10 October 1986 and 21 January 1987.
4. 276. At its most recent meeting in November 1986, the Committee took note of the current status of this case and again suspended its examination thereof for a reasonable time, at the same time requesting the Government to keep it informed of procedural developments in the case (see 246th Report, para. 7, approved by the Governing Body at its 234th Session, November 1986).
5. 277. 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. Previous examination of the case

1. 278. This case concerns a claim made by the CEOG - a union formed in December 1979 - for exclusive bargaining rights in respect of employees of the Senate restaurants. It also concerns allegations of harassment and discrimination against CEOG members by those responsible for the administration of the Senate and its restaurants. In September 1983, the employer organised a poll of the restaurant workers to determine their preferences as regards organising for the purposes of collective bargaining. The results of this poll showed that the majority of the employees did not wish to organise for such a purpose and preferred maintaining the existing system of restaurant management rather than the option of contracting out to private firms. At its February 1984 meeting, the Committee noted that, according to the Government, legislation was pending in both the Senate and the House of Representatives to include Congress under certain provisions of the federal law relating to employment and workers' rights. The Committee requested the Government to keep it informed of the outcome of the three draft laws that were currently pending before various committees for examination.
2. 279. Also at its February 1984 meeting, the Committee examined the allegations of harassment of unionised staff and, in particular, the withdrawal of permission to use a meeting room for CEOG meetings on Senate restaurant premises. The Committee took note of the Government's explanations that the employer (the Architect of the Capitol) was making every effort (meetings with all the staff, bulletin-board postings, putting aside of disciplinary action) to accommodate the CEOG members but, in the case of allowing meeting space in the restaurant rooms, he was obliged to apply the rules which permitted this only for official business. The Committee expressed its regret that, notwithstanding the question of recognition for bargaining purposes, such facilities had been withdrawn, not only because freedom of assembly for trade union purposes constitutes one of the fundamental elements of trade union rights, but also because it was precisely this kind of incident which contributed to the ongoing tension which had been complained of in the case. In view of the fact that the staff involved might be included within the scope of the National Labour Relations Act once the three bills under study had been adopted, the Committee expressed the hope that the Architect of the Capitol would re-examine the question of providing meeting space for trade union purposes on the restaurant premises.

B. Further allegations

1. 280. In its communication of 9 March 1985, the CEOG alleges that a similar situation was developing for employees of restaurants in the House of Representatives. According to the CEOG it notified the House of Representatives, on 30 July 1984, that a substantial majority of the House restaurant employees had signed cards asking the CEOG to be their exclusive representative for labour-management relations; the letter requested the House to take steps leading to prompt negotiations over a contract. The Committee on House Administration, which had jurisdiction over the House restaurant system, subsequently ordered the Architect of the Capitol to assume the direct supervision of the House restaurant employees as from 1 January 1985. The CEOG states that the Architect of the Capitol has not answered its request for negotiations and his staff members refuse to return the union's telephone calls. During 1984, and up to the date of this communication, the CEOG has organised a large number of labourers, custodial workers and others under the supervision of the Architect of the Capitol. However, states the complainant, the employer has repressed trade union activities, for example, by threatening the workers with discharge if they go to union meetings and giving them extra work assignments when CEOG staff representatives attempt to talk to the employees during their rest periods.
2. 281. In support of this latter allegation, the complainant attaches a photocopy of a signed statement, dated 25 January 1985, from a civil and employment rights instructor of the CEOG (Mrs. Victoria Lessin) stating that she had visited the rest areas in House office buildings to talk to the employees during their non-working hours about their rights to form an employee association and to join in the civil rights and education programmes. According to this statement, although no signs are posted restricting entrance to these areas, no regulations govern access to the rooms and her initial visits were never challenged (the employees themselves requested her to come back regularly with more information about the CEOG programmes), on 3 January 1985, the instructor was arrested in one House office building by the United States Capitol police at the request of the superintendent, charged with unlawful entry and held for six hours. The charges were dropped on 22 January.
3. 282. The CEOG contests the possibility of legislation being adopted concerning coverage of House and Senate restaurants; it considers that there was, and is, no majority in either body of the Congress to bring the Senate or the House under the nation's civil rights laws or labour legislation. It encloses excerpts from the proceedings of the Senate Committee on Rules and Administration in which two members of that Committee agreed that the labour legislation for the Congress had little chance of passing.
4. 283. In conclusion, referring to its earlier attempts to unionise Senate restaurant staff, the complainant maintains that the Senate did not really investigate its claims that the September 1983 ballot of restaurant staff was unfair and that the outcome was the result of many years of employee intimidation.
5. 284. In its communication of 19 June 1985, the CEOG stresses that the House of Representatives is now telling its restaurant employees that they will be fired and replaced with non-union private employees; it expresses its fear that the situation will have deteriorated before November 1985.
6. 285. In its communication of 19 July 1985, the CEOG states that it has affiliated with the International Association of Machinists and Aerospace Workers, AFL-CIO/CLC. It encloses an extract from the Congressional Record of 21 June 1985 in which the Chairman of the House Education and Labour Committee's Subcommittee on Labour-Management Relations, states "The Architect of the Capitol is employing the same unfair labour practices against the House of Representatives' cafeteria workers as were used to defeat the efforts of Senate cafeteria employees to organise for the purposes of collective bargaining. (...) For the past several months there appears to have been a concerted campaign directed against the House cafeteria employees to frustrate and defeat their legitimate aspirations to engage in collective bargaining." The CEOG supplies copies of signed statements from nine House restaurant employees and a copy of further statements from the CEOG instructor mentioned above which attest management surveillance and harassment of union organisers on House of Representatives' premises as well as intimidation of workers who have contact with union officials, e.g. threats of dismissal, presence at union meetings. The complainant alleges that, despite a legal opinion from the Office of the Clerk of the House of Representatives (dated 20 March 1985 and copy supplied) to the effect that the Architect of the Capitol does possess authority to recognise an employee association and to bargain collectively with it on certain conditions of employment, that employer refuses to meet with CEOG representatives. In addition, according to the CEOG, the Architect has been investigating the introduction of private restaurant operators in the House of Representatives' ten restaurants.
7. 286. In its communication of 11 April 1986, the complainant contests the content and conduct of the opinion poll carried out of House restaurant employees: it claims that the question "Do you believe that your best interests would be served by becoming a member of a union?" was misleading; and that 50 of the 235 voters were not eligible since they were managers. It adds that the American Law Division of the Library of Congress' Congressional Research Service has supported the legal opinion of 20 March 1985 to the effect that the Architect does have authority to engage in negotiations with employee representatives.

C. The Government's reply 287. In its communication of 16 May 1985, the Government states that the three Bills to include Congress under certain provisions of the federal law relating to employment and workers' rights expired at the end of the 98th Congress in 1984. However, new legislation was introduced at the beginning of the 99th Session and is pending in the House of Representatives. The Government encloses a copy of the proposed new legislation (H.R. 691) which is entitled "a Bill to amend the Civil Rights Act of 1964 to prohibit discrimination based on race, colour, religion, sex, handicap, national origin or age in employment in the legislative or judicial branches of the federal Government and to establish the employment review board composed of senior federal judges selected by the Chief Justice of the United States, which shall have authority to adjudicate claims regarding such discrimination".

1. 288. In its communication of 23 October 1985, the Government comments on the situation of the staff of the House of Representatives' restaurants. Since the Architect of the Capitol was vested with responsibility for this restaurant system on 1 January 1985, he has undertaken improvements such as the institution of grievance and appeals procedures, including the election of employee representatives. It adds that while House employees, like Senate employees, are covered by no specific legislation granting the right to exclusive bargaining status, they are entitled to the full protection of the Constitution and have the same benefits as other federal employees as regards retirement, annual and sick leave, health benefits and life insurance.
2. 289. In its communication of 7 February 1986, the Government refers first to the status of Bill 691: it is before the Committees on Education and Labour, Judiciary and House Administration. Although the Architect of the Capitol maintains that, until Congress legislates on this issue, he has no statutory authority to recognise or bargain with any organisation purporting to represent employees of the House restaurant system, he has confirmed in a written memorandum to all such employees their right to join and participate in any voluntary association without fear of reprisal, provided such activities are undertaken in public, non-working areas during non-working times. The Government points out, with reference to the recent institution of grievance procedures, that in May 1985 employee representatives were elected in work units to assist employees in presenting grievances, but that the election of an employee member of the grievance hearing committee has not been completed due to low vote turnout; a new ballot will be rescheduled for the near future. According to the Government, no employee grievances have been filed since this procedure was instituted. It adds that the Architect has offered employees - as space is available and during non-working hours - the use of a meeting room for discussion of labour relations matters.
3. 290. As regards the alleged continued harassment of employees who participate in or support union activities, the Government states that, in a written memorandum to all House restaurant employees dated 28 June 1985, the Architect clearly indicated that managers and supervisors are not permitted to intimidate employees, or prevent or in any way interfere with their right to join a union and that any action by a manager or supervisor contrary to the memorandum may be brought to the attention of the Architect. As regards the arrest of the CEOG educator, the Government points out that she is not a restaurant employee but was in an area where she was not authorised to be; she was repeatedly asked and refused to leave whereupon the Capitol police arrested her; she was subsequently released and all charges dropped.
4. 291. Lastly, the Government states that on 20 November 1985 the Architect conducted a voluntary informal opinion poll of House restaurant employees to ascertain their view of the restaurant management and to suggest further areas of improvement, including union representation. The poll was taken by secret ballot and voters were assured that neither participation nor non-participation would result in reprisals against the employees. Elected employee representatives and officials of an independent auditing agency of the United States Government were present at each polling station and certified the counting of ballots. Fifty-three per cent (or 125 persons) of eligible employees voted and the results were: 31 voters believed that their best interests would be served by a union; 68 did not and 13 had no opinion.
5. 292. In its communication of 6 May 1986, the Government advises that in April the International Association of Machinists and Aerospace Workers filed suit in the District Court against the Architect of the Capitol on behalf of the restaurant workers. On 10 October 1986, the Government further advised that the Architect had filed a motion to dismiss the lawsuit.
6. 293. In its communication of 21 January 1987, the Government states that the supply of food services in the House establishments has been contracted out to a private company, as a consequence of which the employees concerned are now covered by the National Labour Relations Act. Union representatives are engaged in organisational activity among the workers for collective bargaining purposes and the pending lawsuit, now a moot question, will probably be continued only in so far as the plaintiff's claim for monetary damages is concerned. The Government also confirms that Bill 691 expired at the end of the 99th Session of Congress without legislative action.

D. The Committee's conclusions

1. 294. The Committee notes that since House restaurant employees are now covered by the federal labour relations legislation, the allegations concerning their access to collective bargaining procedures, in particular their inclusion under H.R. Bi11 691, are no longer relevant to this case. However, the status of Senate restaurant employees remains an issue. The Committee observes in this connection that Bill 691 has lapsed and that in any case it did not contain, as did earlier Bills (which lapsed at the end of the 98th Session of Congress), specific amendments to the National Labour Relations Act to bring within its scope employees of the legislative branch of the federal Government. The Committee would therefore again recall, as it has done in its previous examination of this case, that no person should be prejudiced in his employment by reason of his trade union membership or activities, even if the trade union to which workers belong is not recognised by the employer as representing the majority of workers concerned. In addition, the Committee has considered that it would be appropriate for governments to examine the possibility of adopting clear and precise provisions ensuring the adequate protection of workers and their organisations against acts of interference.
2. 295. With regard to the non-recognition of the CEOG for collective bargaining purposes, the Committee observes that, at least in House restaurants, union representation is now assured in accordance with the legislation which applies to the private sector. However, as regards the Senate employees, it would emphasise the importance it attaches to the principle of voluntary collective bargaining by unions that are representative of the workers with a view to regulating terms and conditions of employment. It has also pointed out that employers, including governmental authorities in the capacity of employers, should recognise for collective bargaining purposes the organisations representative of the workers employed by them. The Committee observes that two legal opinions on the question declare that the Architect of the Capitol does possess authority, although limited, to recognise an employee association and engage in collective bargaining with it. The Committee therefore trusts that despite the result of the 1983 ballot the Architect of the Capitol will announce that, should a representative organisation of the workers concerned emerge, he will be prepared to bargain with it.
3. 296. As regards the allegations of ongoing discriminatory practices against CEOG members and workers with whom they have contact, the Committee regrets that tension between the workers and management in both the Senate and House restaurants had escalated to such a level that a CEOG education instructor was arrested on 3 January 1985 for unlawful entry, held for six hours, and that the charge against her was only dropped three weeks later. On the other hand, the Committee notes that the Government stresses that the Architect of the Capitol had made efforts to remind employees of their rights and of existing grievance procedures but that no complaint had been filed. It also notes the Government's statement that care had been taken not to discipline CEOG members in an effort to avoid provoking complaints of discrimination (see 233rd Report, paras. 153 and 154) and that a meeting room is now available on restaurant premises.
4. 297. Despite these positive steps, the Committee would recall that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions (see, for example, 236th Report, Case No. 1113 (India), para. 130). More generally, as regards the alleged threats of dismissal made by the representatives of the employer against those workers who had contacts with the CEOG representatives, the Committee would recall that no person should be prejudiced in his employment by reason of his membership of a trade union, even if that trade union is not recognised by the employer as representing the majority of workers concerned; the Committee had drawn the Government's attention to this in its earlier examination of this case (230th Report, para. 472).

The Committee's recommendations

1. 298. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee requests the Government to give effect to the principle concerning free collective bargaining according to which employers, including governmental authorities in their capacity as employers, should recognise for collective bargaining purposes the organisations representative of the workers employed by them.
   • b) The Committee asks the Government to request the Architect of the Capitol to announce that he is prepared to bargain collectively with an organisation that is representative of the Senate restaurant workers, and having done so, to organise a further ballot among these workers.
   • c) As regards the allegations of continued harassment of CEOG members and workers who have contact with them, it recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment and that this protection is particularly desirable in the case of trade union officials.