Report in which the committee requests to be kept informed of development - Report No 259, November 1988

Case No 1420 (United States of America) - Complaint date: 13-AUG-87 - Closed

1. 219. The Committee of Trade Union Organisations (CTUO) presented a complaint of violations of trade union rights in a communication dated 13 August 1987. On 4 October 1987 the World Confederation of Labour (WCL) communicated its support of the complaint. The Government supplied certain comments on the complaint in communications dated 9 February and 30 September 1988.
2. 220. The United States has not ratified the Right of Association (Non-Metropolitan Territories) Convention, 1947 (No. 84), 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. 221. In its letter of 13 August 1987, the CTUO states that it is a united body of more than 50 unions with different trade union and political views whose aim is to fulfil certain tasks and handle common problems. It alleges that from newspaper articles (copies of which are attached) it is clear that the Government - through the Division of Police Intelligence - has prepared and is maintaining lists of, and files on, both individuals and unions which are described therein as "Separatists and Subversives". According to the complainant union, about 40 trade union leaders, four workers' organisations, the Labour Lobbyist, four CTUO officials and 20 union lawyers have been included in these lists.
2. 222. This description would not be important, states the CTUO, if it were only used for internal analysis or as political reference material for the Government; however, it has been and is being used to discriminate and unjustly and unconstitutionally influence the ability to get and keep jobs and other benefits that could be gained from employment. It alleges that in the case of trade union organisations, this description represents them as being outside the law, leading to malicious and tendentious inquiries and systematic persecution and coercion. All this violates the freedom of association that the ILO has enshrined in its Conventions.
3. 223. The complainant explains that many individuals and organisations in Puerto Rico have been claiming the right they have to self-determination in face of the prevailing colonial situation. This has given rise to activities and efforts in international bodies with a view to correcting the situation. The Government of the United States and the Government of Puerto Rico call these activities subversive, despite the fact that the Constitutions of both countries recognise the legitimate right to them and prohibit the above-mentioned discriminatory practices. The complainant alleges that as a result of the repressive apparatus of the United States Government, such as the Federal Bureau of Investigations and the Intelligence Division of the Puerto Rico Police, an operation has developed involving many types of repression. These range from the infiltration of unions by secret police agents to the carrying out of sabotage and attributing it to unions, as well as the kidnapping and killing of trade union leaders and/or activists.
4. 224. According to the CTUO, this persecution against trade unionism and the eagerness to describe as criminal the workers' lawful actions has escalated to such an extent that recently it became known that there is a so-called "worker-employer unit" in the Puerto Rico police whose purpose - as admitted by its members during public hearings before the Puerto Rico Civil Liberties Commission - is to prosecute and control the activities of the trade union movement.

B. The Government's reply 225. In its letter of 9 February 1988, the Government states that the authorities of the Commonwealth of Puerto Rico have supplied the following initial comments: a civil lawsuit is currently pending before the Supreme Court of the Commonwealth concerning the lists of separatists and subversives mentioned in the ILO case, thus observations cannot be transmitted while the case is sub judice. The lists in question have been sealed, by Supreme Court order, until such time as the lawsuit is resolved and therefore they are not open to public inspection.

1. 226. In its communication of 30 September 1988, the Government supplies information on the pending Supreme Court case. It was initiated by, on the one hand, a member of the Puerto Rican Parliament (the Hon. David Noriega Rodréguez) who requested an order to the Police Superintendent of Puerto Rico to take measures to seal certain files on individuals and organisations in the possession of the police and which allegedly were created because of the political beliefs of those concerned. On the other hand, a citizen (Graciani Miranda Marchand) requested an order declaring unconstitutional the practice of maintaining lists and files on individuals who are not undergoing bona fide criminal investigation and the handing over of all documents concerning him. The Government of the Commonwealth is the defendant in both actions which were joined on 20 July 1987.
2. 227. According to the communication, the Commonwealth admitted the unconstitutionality of such practices and the Governor of Puerto Rico, on 21 July 1987, issued Executive Order No. 4920-A setting up a council to protect the citizens' right to privacy with a view to preventing in the future the collection and compilation of such information based purely on political reasons and establishing a procedure for returning to the individuals or groups concerned the information obtained about them. From a copy of the Order supplied by the Government, it appears that the council shall be a permanent body chaired by the Secretary of Justice and consisting of the Superintendent of Police and three retired Supreme Court judges (section 1). The council shall be responsible for, among other things, a) establishing specific guidelines to be followed in the internal security programme so as to meet the aims of the council; b) examining the files held by the police and the Special Investigations Bureau of the Department of Justice and, where there is a violation of the guidelines, notifying the persons concerned and offering them the opportunity to see their file, which can eventually lead to the final disposal of the offending file; and c) establishing adequate co-ordination with whichever federal agencies could provide means to strengthen the aims of the programme such as the secret service, the coast guard, the customs service and the Federal Bureau of Investigations. As a consequence of this Order, the file concerning Mr. Miranda Marchand was ordered to be handed over to the council which now had initial jurisdiction in such matters.
3. 228. On 31 July 1987 the High Court of Puerto Rico handed down its partial decision on the case (which was finalised on 14 September 1987), clarifying four issues: (1) that the practice of compiling files on individuals and organisations exclusively by reason of their political and ideological beliefs without there being any real proof to link the persons to the commission or attempted commission of crimes is illegal and unconstitutional; (2) that the State must return to Mr. Miranda Marchand and to the various persons concerned, including groups of persons not parties to this case, every document in the possession of the police found in files opened solely on the basis of the political and ideological beliefs of these other persons; (3) that any provisions in Executive Order No. 4920-A in conflict with this decision shall be repealed; and (4) that the set of rules laid down in the judgement be used for the handing over of the files in question to the persons concerned not involved in the case. In the meantime the list of named persons and organisations should be handed in to the court in a sealed envelope. On 14 October 1987, the State appealed this decision in so far as it extended to third persons foreign to the case, and challenged the procedure drawn up concerning them and the declaration of partial unconstitutionality of the Executive Order. On 5 November 1987, the Supreme Court handed down a resolution admitting the appeal and on 10 December - at the appellant's request for an injunction - it ordered the suspension of the measures contained in the judgement of the High Court. Copies of all these documents are supplied by the Government.
4. 229. The Government goes on to describe the series of legal procedures attempted by the Hon. Noriega Rodríguez which led the Supreme Court, on 10 February 1988, to reconsider its earlier decision of 10 December. The Supreme Court in effect ordered the authorities of the Commonwealth to take measures to protect the files in question and to hand over to the High Court a sealed envelope containing the lists of persons and organisations mentioned in the police files in question. This was done on 25 February 1988; it appears that in fact four sealed boxes containing a summary 4,570 pages long of the persons and organisations involved were deposited. The State presented its final pleadings before the Supreme Court on 11 March 1988 and the case is awaiting a final decision.

C. The Committee's conclusions

1. 230. The Committee notes that this case concerns serious allegations that the police in Puerto Rico are preparing and maintaining lists concerning unionists and workers' organisations, not for use in any criminal investigation, but for use in anti-union discriminatory practices. The complainant gives no further details on these practices which allegedly include impossibility of listed unionists to get and keep jobs, systematic persecution, as well as kidnapping and killing of trade union leaders and activists, nor has it produced any evidence to show that the lists were in fact used against unionists. The Committee is aware, however, from the voluminous documentation supplied by the Government that the existence of such illegal police lists and files was admitted by the public authorities, and that there are thousands of names on the lists.
2. 231. The Committee also notes that the Government's reply centres on a Puerto Rican High Court case, decided partially on 31 July and finally on 14 September 1987 and appealed against by the Commonwealth of Puerto Rico on 14 October 1987. Final pleadings were presented to the Supreme Court in this appeal in March 1988 and its decision is awaited.
3. 232. While recognising that the Supreme Court's decision will be useful in adding extra detail to this case, the Committee observes from the documents supplied that the appeal does not concern the central issue of the High Court case, namely its declaration that the police practice of gathering information and compiling lists and files when there is no criminal investigation is illegal and unconstitutional. The appeal, in fact, challenges the lower court's attempt to regulate the handing over of the files in question even to persons not involved in the original petition - which, it should be pointed out, was not a class action on behalf of all the individuals and organisations listed in the police files - and its partial nullification of the Executive Order which had been issued by the Governor. (It appears that only section 3 b) was purportedly repealed by the High Court decision.) Stated in other words, the appeal attacks the remedies - and the way they were delivered using the separation of powers argument - put forward by the lower court to protect all victims of the police department's illegal and unconstitutional practices, not the declaration of illegality itself.
4. 233. The Committee has reviewed the substantial documentation sent by the Government and by the complainant, and in particular the texts of the various court decisions and documents which uphold the illegality of the police practices complained of by the CTUO in this case, but which are pending a Supreme Court decision as to how to dispose of the offending files and related material. In such circumstances the Committee notes with interest the condemnation of the police practices in question. In the past it has stated that all practices involving the "blacklisting" of trade union officials constitute a serious threat to the free exercise of trade union rights, and, in general, governments should take stringent measures to combat such practices. (See, for example, 177th Report, Case No. 844 (El Salvador), para. 276.)
5. 234. In line with the general principle of freedom of association that no person should be prejudiced in his employment by reason of his trade union membership or legitimate trade union activities, the Committee recalls in particular that where a government has undertaken to ensure that the right to associate shall be guaranteed by appropriate measures, that guarantee, in order to be effective, should, when necessary, be accompanied by measures which include the protection of workers against anti-union discrimination in their employment. (See 14th Report, Case No. 105 (Greece), para. 137.) In the present case, the Committee welcomes the fact that the offending files and lists are sealed, under the judiciary's protection, for the moment. On the basis of the documentation before it, it considers that an appropriate remedy to the wrong committed will be forthcoming from the Puerto Rican Supreme Court and requests the Government to keep it informed of the decision to be handed down shortly by that Court, and to supply a copy of it.

The Committee's recommendations

1. 235. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • a) The Committee notes with interest that the national courts have condemned the Puerto Rican police practice of compiling blacklists including unionists and workers' organisations which have no link whatsoever to criminal investigations. It recalls that the practice of "blacklisting" of trade union officials constitutes a serious threat to the free exercise of trade union rights.
   • b) While awaiting from the Government a copy of the final decision in the civil case before the Puerto Rican Supreme Court concerning the methods of remedying this illegal and unconstitutional practice, the Committee trusts that an appropriate remedy will be found which will guarantee effectively to Puerto Rican unionists protection against anti-union measures of this kind.