Interim Report - Report No 284, November 1992

Case No 1557 (United States of America) - Complaint date: 26-OCT-90 - Closed

1. 758. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) submitted a complaint against the Government of the United States alleging the violation of trade union rights in a communication of 26 October 1990. Subsequently, this organisation submitted additional information in support of its complaint in communications of 10 December 1990 and 4 January 1991. In addition, the Public Services International (PSI) associated itself with the AFL-CIO complaint in a communication of 18 December 1990. The Government sent its observations on the complainants' allegations in a communication dated 15 May 1992.
2. 759. The United States has 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. 760. In its initial communication of 26 October 1990 the AFL-CIO alleges that the United States labour legislation violates the basic rights of public servants to organise and to bargain collectively.
2. 761. In support of its allegations, the AFL-CIO encloses a letter from Mr. Al Bilik, President of the Public Employee Department (PED) of the AFL-CIO, which contains enclosures showing violations of the trade union rights of public employees, as well as a summary of provisions of legislation at the state level affecting the right of workers in public employment to organise and bargain collectively entitled "State Public Sector Relations".
3. 762. The AFL-CIO explains that, under the federal system in the United States, the national Government has adopted legislation which covers federal employees. Other national legislation covers workers in the private sector if their employers are "engaged in interstate commerce". In addition, many employees in the transport sector are covered by the Railway Labour Act, which is also federal legislation. Employees of the individual states are covered by state collective bargaining legislation where it exists. Employees of local governments (cities, counties, school districts, water districts, etc.) are covered by state collective bargaining legislation in those states which have such legislation or, in certain cases, by local ordinances where they exist. The complaint of the AFL-CIO thus covers the violations of the trade union rights of both federal employees and state and local employees in states and localities where their rights to organise and bargain collectively are violated and where legal provisions for recognition of trade unions and collective bargaining are inadequate or completely non-existent.
4. 763. The AFL-CIO adds that the basis for labour relations in the federal sector was Executive Order No. 10988, issued by President Kennedy in 1962, until the adoption by Congress of the Civil Service Reform Act in 1978. It explains that this Act contains provisions which regulate labour relations, including the procedure for the establishment of bargaining units and exclusive bargaining representatives by unit. However, this Act limits the scope of bargaining by excluding wages and other monetary issues as well as any question related to money. It also provides for the excessive protection of "management rights", which, when compounded and amplified by administrative and judicial decisions and actions, effectively limit the rights of workers and their trade unions to engage in real and comprehensive collective bargaining.
5. 764. In this connection, the AFL-CIO draws attention to the statement of Mr. James W. Seidl, business representative of District Lodge 21 of the International Association of Machinists and Aerospace Workers, affiliated to the AFL-CIO, concerning violations and procedural abuses at the US Ordnance Station in Louisville, Kentucky. Mr. Seidl's statement contains a list of over 80 questions which management declared non-negotiable and excluded from mediation and arbitration procedures. He states, however, that some of these questions had come under collective bargaining for many years, but that the "management rights" clause and its interpretation by arbitrators, who have disqualified themselves from ruling on certain questions on which workers would like to bargain, will eliminate the very concept of collective bargaining. Subsequent to Mr. Seidl's statement of 9 June 1988, the problems with management have continued to accumulate. Recently, the employer unilaterally imposed its own terms and conditions of employment. This is only one example of a system which does not function well and which restricts trade union rights.
6. 765. Yet, other sectors have been able to secure their rights. The AFL-CIO states that at the time when the independent Postal Service was created in 1970, full collective bargaining rights were provided for trade unions representing workers in that sector. Collective bargaining exists with machinery for interest arbitration of unresolved issues.
7. 766. At the state level, there are 24 states which, according to the AFL-CIO, do not have comprehensive collective bargaining legislation. This situation affects approximately 4 million workers in those states, according to publications entitled "One country ... two different worlds" and "State public sector labour relations" provided by the complainant. The AFL-CIO draws special attention to the statement of Mr. Robert Encinas of Local No. 2238 of the American Federation of State, County and Municipal Employees (AFSCME) of the AFL-CIO, concerning gross violations of trade union rights in the State of New Mexico. This trade unionist alleges that public employee unions are forbidden by law from engaging in wage bargaining, and that since 1987 they have lost the right to negotiate other conditions of employment as a direct result of the actions of District Attorney Stratton. Although Mr. Encinas' statement is dated 29 January 1988, the AFL-CIO states that the situation remains essentially unchanged. In 1989 both Houses of the State Legislature passed public employee collective bargaining legislation, but it was vetoed by the Governor and failed to be enacted into law.
8. 767. The effects of the limits contained in laws or regulations on workers' organisations are evident in the major differences in union membership figures among the states, depending on their legal framework. In the federal sector, since 1974, membership in the trade unions in the Postal Service has risen, while the unions operating under the restrictions of the 1978 Civil Service Reform Act have experienced a decline in membership. More important than membership figures, however, is the fact that millions of American workers are being deprived of their fundamental trade union rights.
9. 768. The complainant also attaches the following documents to its complaint: the Public Employee Department policy statement of 15 February 1990 in support of the ILO and the rights of American and foreign workers; the statements of several trade union leaders made during hearings before the Joint Senate and House Sub-Committee on these questions.
10. 769. It appears from this documentation that millions of public employees in the United States have been deprived of the basic right to negotiate collectively, especially state employees in the States of New Mexico and Georgia, fire-fighters in Bristol, Tennessee, and in Colombia, South Carolina, the police force in several jurisdictions, federal government employees in the States of Louisiana and Kentucky as well as a number of other federal government employees.
11. 770. In its letter of 4 January 1991, the AFL-CIO encloses documentation from the American Federation of State, County and Municipal Employees (AFSCME), the AFL-CIO affiliate which represents the largest number of state and local government employees. This documentation contains information on violations of freedom of association and the right to organise in the States of Virginia, Tennessee and Texas. It contains additional information on widespread violations of the basic rights of workers in states which do not have adequate legislation as regards public employee collective bargaining. Specifically, these violations include: a ban on collective bargaining; the judicial or legislative suspension of collective agreements; discrimination against trade union organisations on the grounds of their national affiliation; and severe restrictions on the freedom and functioning of trade unions in three of the 24 states which do not have adequate legislation for public employee collective bargaining.
12. 771. Lastly, in a communication of 14 January 1991 the Public Services International (PSI) associates itself with the AFL-CIO complaint. In particular, it denounces the restrictions to the rights of public sector employees to organise and to bargain collectively, the suspension of collective agreements in the State of Virginia, the refusal to grant check-off facilities to independent trade unions in the State of Tennessee and the ban on bargaining in respect of several questions affecting public employees in the State of Texas, with the exception, however, of police officers and fire-fighters, to whom legislation grants the right to negotiate their terms and conditions of employment.

B. The Government's reply

1. 772. In its letter of 15 May 1992, the Government describes the nature of public service employment in the United States, where one out of every five employed persons in the United States is employed by either federal, state or local government. Public sector employees perform a vast array of jobs. While there are no precise data available, the Government considers that a majority of public sector employees are workers which the ILO would view as being engaged in the administration of the State - like tax collectors, labour inspectors, budget analysts and programme administrators. The common denominator among all these workers is not the nature of their work, but rather the nature of their employer. This has been stressed by a Supreme Court Justice: "The uniqueness of public employment is not in the employees nor in the work performed; the uniqueness is in the special character of the employer."
2. 773. The Government explains that public sector employment occurs at two levels, the national Government and the 50 state governments. Each is accorded certain sovereign rights and powers by the Constitution. In addition, the state governments delegate certain powers to local administrations, such as cities, counties, municipalities and school districts. The structure of the public sector is highly decentralised and diverse.
3. 774. The Government states that the First Amendment to the Constitution guarantees the associational rights of all persons, including an individual's right to form and join a union. For a long time, the courts viewed public employment as a "privilege" and held that governments could condition employment on public employees giving up their constitutional rights. But in more recent years, the Supreme Court has rejected this view. Thus, the constitutional right to freedom of association applies to public sector employees, and public employers may not discipline their employees for joining a union or advocating that others join a union, or for taking an active part in union affairs. However, as recognised by ILO standards and principles, freedom of association - the right to form, join and participate in a union - is not equivalent to collective bargaining.
4. 775. Referring to the evolution of collective bargaining in the public sector, the Government states that before the 1960s, relatively few public sector employees in the United States had collective bargaining rights. Bargaining was felt to be not only inappropriate, but also unnecessary, given the special protections and benefits of public service employment. Since the 1960s, collective bargaining in the public sector has been progressively recognised by government agencies and the courts as being in the public interest as well as beneficial to the parties concerned. Today, it is a common occurrence. Indeed, public sector unions are growing in size at a time when many private sector unions are losing members, and public sector employees are far more likely to be union members than their private sector counterparts (Bureau of Labor Statistics estimate that of the 16.6 million employees who were union members in 1991, 6.7 million work for the federal, state or local governments). In a country where only 12 per cent of the private industry workforce belongs to unions, 37 per cent of public sector workers hold union membership. Moreover, as of January 1991, over 1.2 million federal government employees were covered by approximately 1,500 collective bargaining agreements (nearly 60 per cent) and government policies for engaging in collective negotiations and/or "meet and confer" discussions with representatives of employee organisations existed in 43 state governments and 14,381 local governments (as of October 1987, 38,667 labour-management agreements were in effect in these jurisdictions).
5. 776. The Government notes that the AFL-CIO complaint implies this organisation's concern about the slowness of United States procedures for guaranteeing freedom of association and trade union rights. Considerable efforts have been and are being made, however, to reduce processing time and, where necessary, to eliminate any backlog of cases. But in examining collective bargaining in the public sector, it is very important to bear in mind that the law and practice with respect to freedom of association and collective bargaining in the public sector, just as in the private sector, are based on the democratic principle of due process. As the Government has indicated in previous cases before the Committee on Freedom of Association, it believes due process to be the greatest strength of the United States system, despite the fact that, as a consequence, the system sometimes moves more slowly than all parties would prefer.
6. 777. Describing the history of the Federal Labour Relations Program, the Government states that it was not until 1962, when President John F. Kennedy issued Executive Order 10988 concerning employee-management cooperation in the federal service (referred to as EO10988, copy supplied), that an overall federal labour-management relations programme was formally established. The Kennedy Executive Order is credited as the springboard for widespread public sector bargaining, both at the federal level and in state and local jurisdictions. It recognised and undertook to protect the rights of federal government employees to form and join labour organisations without fear of penalty or reprisal and established procedures for granting recognition to federal employee organisations for the purpose of consulting or negotiating with federal agencies on working conditions and personnel policies. It imposed an obligation on federal government agencies to bargain on a large number of issues, but also preserved management's right to direct, hire, discharge, promote and discipline employees. It stipulated that a labour organisation which was supported by a majority of the unit's employees was designated as the unit's exclusive representative, with authority to act for employees and negotiate bargaining agreements; the Government was required to "meet and confer" with the exclusive representative at reasonable times with respect to "personnel policy and practices and matters affecting working conditions". In the absence of an exclusive representative, it also provided for formal recognition of a labour organisation which was supported by at least 10 per cent of the unit's employees. Formal recognition obligated the federal agency to "consult" with the organisation from time to time on the "formulation and implementation of personnel policies and practices and matters affecting working conditions". A labour organisation which was unable to demonstrate 10 per cent employee support could be granted informal recognition, but the agency was not obligated to consult it on any matter. EO10988 reiterated the long-standing prohibition of strikes against the Government.
7. 778. EO10988 did not cover employees of the Federal Bureau of Investigation (FBI), Central Intelligence Agency (CIA), or other agencies performing intelligence, investigative or security functions if the head of such an agency determined that the provisions of the Order could not be applied in a manner consistent with national security requirements and considerations.
8. 779. EO10988 contained some important shortcomings: for example, although it authorised negotiation procedures between federal agencies and exclusive labour representatives, it did not establish procedures for resolving bargaining impasses, in the absence of the right to strike. Also, management continued to be a "more equal" partner because the Federal Labor Relations Program was to be administered and implemented by the heads of the executive departments with assistance from the Civil Service Commission.
9. 780. In 1969, continues the Government, a review of the programme recommended significant changes to meet the dramatic growth in union representation of federal employees, in particular, means for dealing with disputes that occurred in union-organising activities and in the negotiation and administration of labour-management agreements. Thus, Executive Order 11491 concerning labour-management relations in the Federal Service was issued by President Nixon in October 1969 (copy supplied). It reaffirmed the organisational rights of federal employees and introduced a number of changes in the federal labour-management relations structure:
   • - the Federal Labor Relations Council (FLRC) was established as a central body to administer the programme and make final decisions on policy questions and adjudicate labour-management disputes;
   • - certain actions of both federal agencies and unions were defined as unfair labour practices and procedures were established for resolving them;
   • - only exclusive recognition of labour organisations was permitted, but "national consultation rights" were provided for organisations which did not qualify for exclusive recognition;
   • - the Federal Mediation and Conciliation Service (FMCS), an independent agency established in 1947 to assist labour and management in private negotiations, was directed to extend mediation assistance to parties in federal sector negotiations;
   • - the Assistant Secretary of Labor for Labor-Management Relations was given authority to enforce standards of conduct for federal employee unions;
   • - the Federal Service Impasses Panel (FSIP) was established as an agency within the FLRC with authority to "take any action it considers necessary" to resolve negotiation deadlocks;
   • - binding arbitration to resolve employee grievances and disputes over the interpretation and application of collective bargaining ageeements replaced the advisory arbitration provided for in EO10988; and
   • - every negotiated agreement was required to contain a procedure for considering grievances over the interpretation or application of the agreement.
10. 781. The Government states that in 1977, at the direction of President Jimmy Carter, another review's recommendations formed the basis for a legislatively mandated labour relations programme for federal government employees. This was enacted as part of the Civil Service Reform Act of 1978 (CSRA). The Federal Service Labor-Management Relations Statute, Title VII of the CSRA took effect on 11 January 1979 (copy supplied). It applies to all federal employees except supervisory personnel, members of the armed forces and employees of certain agencies whose primary function is intelligence, counter-intelligence, investigative or national security work, for employees who are permitted to bargain under separate authority.
11. 782. According to the Government, Title VII codified the right of the federal employees to organise and bargain collectively through labour organisations of their own choosing and made some significant changes:
    • - the Federal Labor Relations Authority (FLRA) was established as an independent, bipartisan agency to replace the Federal Labor Relations Council. It is comprised of three members appointed by the President with Senate approval, empowered to resolve disputes over the negotiability of proposals made in collective bargaining; decide whether conduct alleged in a complaint constitutes an unfair labour practice; resolve exceptions to grievance arbitration awards; and review decisions in disputes over bargaining unit determinations and elections of exclusive representatives. The Federal Service Impasses Panel created by the Nixon Order was made an entity within the FLRA;
    • - an independent Office of the General Counsel within the FLRA was created, whose chief responsibility is to investigate unfair labour practice charges and issue and prosecute complaints before the authority on behalf of the charging party;
    • - coverage of negotiated grievance procedures and arbitrations was expanded to include all complaints relating to employees' working conditions - even appeals for which a statutory appeal procedure existed, such as discharges, demotions and discrimination complaints.
12. 783. The Government points out that federal postal workers were afforded collective bargaining rights under the Postal Reorganization Act, 1970. Congress found that these employees provide a unique, business-oriented service distinct from the services of other federal agencies. The limitations on their bargaining rights mirror those in the private sector. Congress stated at that time that collective bargaining procedures, as in private industry, would prevail in the postal service in setting wages, hours of work, and other fringe benefits. Labour-management relations in the postal service would be subject to the National Labor Relations Act with certain exceptions. Postal service employees would be covered by the strike ban provisions of federal employees and continue under full coverage of the civil service retirement system. Postal employees would be free to join or to refrain from joining a labour organisation.
13. 784. Voluntary collective bargaining is one of the keystones of the CSRA. A key aim of the Act, in pursuit of the promotion of collective bargaining, is to balance employees' organisational rights with management's right to administer the agency and its obligations to serve the public interest. The rights of federal employees and their labour organisations are laid down (principally in sections 7102 and 7114) to include the right to form bargaining units and to select unions to represent them in collective bargaining with respect to conditions of employment; right to refrain from such activity; an exclusive representative of a unit's employees is entitled to act for those employees and to negotiate collective bargaining agreements on their behalf. Management has rights: to determine the mission, budget, organisation, number of employees and internal security practices of the agency; and hire, assign, direct, lay off, retain and discipline employees. The Act provides for review and enforcement of its provisions in the federal courts.
14. 785. The Government points out that Title VII defines certain practices of both agencies and unions as unfair labour practices (ULPs). This list of ULPs as well as the process for filing and resolving them is largely patterned after the private sector National Labor Relations Act. Examples of ULPs by agency officials include disciplining or otherwise discriminating against employees on account of their union activity, failing or refusing to consult or negotiate in good faith with a labour organisation, and failing or refusing to cooperate with required impasse procedures and decisions. Union ULPs include refusing to negotiate in good faith, engaging in a strike or work slow-down and interfering with, restraining or coercing an employee in the exercise of his/her rights under the Act.
15. 786. The Government describes the scope of bargaining. It covers personnel policies and practices and matters that affect working conditions, but not issues that are controlled by other federal statutes, such as pay and benefits; matters covered by regulations that have government-wide application (such as rules governing the hiring, firing, promotion, and retention of employees); or the "management rights" discussed above. Nevertheless, even where certain subjects are not negotiable, management must negotiate the procedures it will use in exercising its rights as well as arrangements for employees adversely affected by management actions. Any management may bargain the numbers, types and grades of employees assigned and the technology and means of performing work. Therefore, much of the collective bargaining in the federal Government concerns the impact of various management actions. The Government adds that the courts have ruled that "management rights" are not without limits.
16. 787. Where conflicts arise between federal agencies and unions with respect to whether specific issues fall within the scope of bargaining, the Act's procedures allow appeal to the FLRA within 15 days and there are time-limits for the response to the appeal and subsequent rejoinder.
17. 788. According to the Government, the restrictions on the scope of bargaining are offset somewhat by the Act's provisions mandating consultations between federal agencies and unions on issues relating to government-wide rules and regulations. In accordance with section 7117(d) of the CSRA and Part 2426 of the FLRA's regulations, if a labour organisation is the exclusive representative of 3,500 or more employees, it may be granted "consultation rights" by an agency with respect to any government-wide rule or regulation issued by the agency which effects any substantive change in any condition of employment. An organisation having consultation rights must be informed of any substantive change in conditions of employment proposed by the agency and permitted reasonable time to present its views and recommendations regarding the proposed changes. The employer must consider the views or recommendations before taking final action and must provide the labour organisation with a written statement of the reasons for taking the final action. The Government provides statistics on government-wide consultation rights, which show that 24 organisations enjoy such rights.
18. 789. The Act also establishes procedures for either party to seek the resolution of bargaining impasses, first through the assistance of the Federal Mediation and Conciliation Service (FMCS), an independent agency serving both the private and public sectors, then, if this proves unsuccessful, through the Federal Service Impasses Panel, an entity within the FLRA. The Panel may recommend further procedures or provide direct assistance, up to and including binding arbitration. Alternatively, the parties themselves may agree to binding arbitration, but the procedure must be approved by FSIP. The Government points out that when the Committee on Freedom of Association examined an earlier case against the United States (Case No. 1074), it thoroughly reviewed federal dispute resolution procedures and concluded that they adequately safeguard employee interests. Since then steps have been taken, particularly by FLRA and FSIP, to make these procedures more effective and more timely. For example, the Government supplies the following statistics:
    • - During 1990, FLRA's Office of General Counsel opened 7,434 new cases, the highest number of openings in the office's history. Through its regional offices, it took dispositive actions in 7,163 cases, also the highest number in the history of the office. Despite the increased number of both case openings and case dispositions, the average processing time decreased to 74 days from 77 days in 1989.
    • - FSIP closed 248 cases during 1990, an increase of approximately 11 per cent from 1989, the processed time averaging 87 days.
    • - The majority of cases examined by the federal dispute resolution machinery are settled and/or withdrawn. During 1990, FSIP reported that 51 per cent of disposed cases were withdrawn, many of these following settlements reached as a result of assistance by the panel of FMCS.
    • - With respect to unfair labour practice charges, FLRA's General Counsel achieved pre-compliant settlements in 2,269 cases, representing 33.26 per cent of the total number of ULP dispositions - a new record.
    • - During 1990, FLRA began work on a new automated case-tracking system which will permit updating of its database, incorporate litigation records with the FLRA database and facilitate easier production of reports.
    • - To facilitate ease of filing for parties, the Office of General Counsel developed new forms for charges and petitions.
19. 790. Referring to the AFL-CIO's reliance on the dispute between the US Naval Ordnance Station in Louisville, Kentucky and Local Lodge 830 of the International Association of Machinists and Aerospace Workers (IAM), the Government states that both parties contributed to the lengthy and confrontational negotiations over renewal of a collective bargaining agreement. Indeed, negotiations between the station and the union have historically been protracted and contentious. In this case, it took the parties four years to reach an agreement. The two prior collective bargaining agreements had taken five and seven years, respectively, to negotiate. During the most recent dispute, the parties availed themselves of the FMCS and the FSIP, with whose recommendations they cooperated to varying degrees. Each party also filed numerous charges with the FLRA that the other party had engaged in unfair labour practices, including in particular the failure to bargain in good faith. The bargaining atmosphere was exacerbated by reports that the US Department of Defense, for budgetary reasons, was considering the shutdown of a number of facilities, including the Naval Ordnance Station, a major employer in the Louisville area. A collective bargaining agreement was finally executed in July 1990, in great part due to the Act's procedures. Though neither party to the agreement was totally content with every provision, the agreement represents the fruit of the Act's machinery designed to facilitate and encourage collective bargaining, procedures which protect the principle of voluntary negotiation and guarantee the autonomy of the bargaining parties.
20. 791. The Government stresses that it is active in experimenting with new models for labour-management cooperation in the federal sector, and cooperation is becoming more widespread and more successful. For example, Title VI of the Civil Service Reform Act allows the Office of Personnel Management to waive particular civil service laws and regulations in order to test alternative approaches. This has been used to develop various labour-management cooperative programmes. The Office of Personnel Management considers that cooperative dealings can be particularly helpful with regard to topics that Title VII of the Act exempts or even prohibits management from negotiating with unions. Federal agencies contemplating cooperative initiatives may receive technical assistance from various government services, in the form of conferences, symposia, training programmes and information. For example, two cooperative programmes which have been particularly successful are the PACER SHARE programme and the Internal Revenue Service (IRS) Joint Quality Improvement Process. The first involves 1,900 employees who are represented by the American Federation of Government Employees (AFGE). Both agency officials and union representatives agree that the project has resulted in improved labour-management relations, enhanced productivity and cost savings. The second is an agency-wide initiative designed to enhance productivity at all levels and to improve traditionally contentious relations between the IRS and the National Treasury Employees Union (NTEU). The programme has achieved more efficient operations and direct cost savings and agency and labour representatives note that the programme has improved labour-management relations.
21. 792. The Government states that another type of cooperative effort between management and labour in the federal sector has been the improvement of bargaining skills and negotiation procedures with a view to mitigating traditional adversarial postures and attitudes. An example is the collective bargaining agreement between the Department of Labor and Local 12 of the American Federation of Government Employees, AFL-CIO (AFGE), which came into force on 15 March 1992 (copy supplied). In drafting the new agreement, the participants engaged in interest-based bargaining after traditional negotiations throughout the 1980s had resulted in impasse and acrimony.
22. 793. Compared with labour law and procedures developed for private sector employees, the labour-management relations programme in the federal service is very young and still very much in an evolutionary stage. None the less, it was established and is administered in line with international principles of freedom of association. The fact that there are shortcomings to be resolved has been widely acknowledged, particularly in testimony before the committee of the United States Congress charged with the overseeing of federal civil service employment. However, the entities that coordinate and guide the federal labour-management programme continue to make strong efforts to improve its effectiveness and efficiency.
23. 794. But at the same time that shortcomings are acknowledged, the Government stresses the gains that have been made in the brief history of this programme and its potential for future achievements in federal labour-management cooperation. It cites testimony made in November 1991, before the Committee on Post Office and Civil Service of the House of Representatives, by the Director of the Office of Personnel Management, where he refers to expansion of the scope of collective bargaining, to the need to move forward both to create new models of labour-management cooperation and to adapt existing models to new situations and to the significant impact of unions on major policy and programme changes that affect conditions of employment.
24. 795. Turning to the regulation of collective bargaining for state and local government employees, the Government states that due to the country's federal structure the 50 individual state governments have been given broad discretion to set labour and employment policies for state and municipal employees. This constitutionally mandated distribution of power between the national and state governments has been carefully guarded by the courts and in deference to the principle of federalism, the National Labour Relations Act specifically excludes state and local government employees from its scope. Although during the 1960s and 1970s Congress and the Executive Branch considered legislation that would provide federal protection for the collective bargaining rights of state and local government employees, the United States Supreme Court effectively put a halt to such potential legislation.
25. 796. This decentralised approach to public sector bargaining has resulted in a wide diversity of state and local labour relations programmes and has permitted considerable innovations in public sector labour relations. Collective bargaining at the state and local level today is common, and the public sector far outstrips the private sector in terms of the percentage of workers who are covered by collective bargaining agreements. As has been the case in the federal sector, the evolution of state collective bargaining laws and procedures has as much resulted from, as it has led to, the rapid growth of public sector unionism. After World War II the initial legislative response of many governments to the growth of public sector unions was in the form of anti-strike laws. In the 1950s some states enacted relatively weak "meet and confer" laws or permissive bargaining laws. Most notably, the State of Wisconsin enacted comprehensive collective bargaining legislation for municipal employees in 1959. President Kennedy's 1962 Executive Order is widely credited with stimulating the states to enact laws requiring public employers to recognise and bargain with representatives of their workers. By 1987, 34 states had enacted collective bargaining statutes covering all or some occupational groups, two had passed statutes requiring the employer to meet and consult with some groups, three had authorised bargaining by statute for certain groups under certain circumstances, and one had extended the right to bargain to state employees by executive order. According to a June 1991 report (copy supplied), 43 state governments and 14,381 local governments had policies for engaging in collective negotiations and/or meet-and-confer discussions with employee organisations.
26. 797. According to the Government, although a number of state laws cover only certain types of public employees (fire-fighters or teachers, for example) or provide varying degrees of collective bargaining rights to the different types of employees, the trend has been to extend comprehensive coverage to all state and local government workers. In the few states that have not enacted collective bargaining laws, union organisation occurs and collective bargaining relationships are common. There has been a strong trend in recent years for the courts to hold that a public employer has the authority to engage in collective bargaining voluntarily even in the absence of enabling legislation.
27. 798. There is diversity at the state and local level not only in terms of which employees are granted specific collective bargaining rights, but also on which subjects may be bargained. Some states, like the federal Government, prohibit bargaining over wages and benefits. But many permit public employees to bargain over the same types of economic matters as do employees in the private sector. A few states recognise the right to strike for public employees.
28. 799. The Government gives some recent examples where advances have been made in the area of public sector collective bargaining rights:
    • - on 3 March 1992, the Governor of New Mexico signed legislation establishing comprehensive collective bargaining rights for public employees;
    • - in March 1992, Washington's Governor signed legislation extending public employee collective bargaining to superior court employees on all issues of employment;
    • - in January 1992, state police officers in Indiana signed a two-year agreement with the state - the first contract reached since Indiana's Governor issued an executive order in 1990 authorising collective bargaining for state employees;
    • - although a collective bargaining bill for public employees in West Virginia did not pass, union leaders recently agreed with the state's Governor on establishment of a study commission to explore the various issues affecting personnel in state and local government and report back to the 1993 session of the State Legislature.
29. 800. The Government points out that, recognising the autonomy of the states in the development of labour law and policies for public sector employees, the federal Government nevertheless actively encourages and helps to promote sound collective bargaining practices as well as labour-management cooperation at the state and local level. For example, the Federal Mediation and Conciliation Service provides the necessary coverage where mediation services are not available at the state level. FMCS also provides training, conferences and grants for parties and agencies in the public sector. The Department of Labor also assists practitioners in state and local government collective bargaining. In 1985 it was instrumental in the establishment of the State and Local Government Labor-Management Committee. This committee brings together 18 of the major national-level public employer and union organisations concerned with labour relations in state and local government, and is committed to the promotion of excellence in government through labour-management cooperation.

C. The Committee's conclusions

1. 801. The Committee notes that the allegations made by the AFL-CIO and by the PSI concern restrictions on the basic rights of federal employees and of employees of some states and local governments to organise and to bargain collectively. More specifically, the complainants refer to: (1) Title VII of the Civil Service Reform Act of 1978 which, although it contains provisions which regulate labour relations, including a procedure for the establishment of bargaining units and exclusive bargaining representatives by unit, restricts at the federal level the scope of collective bargaining by excluding wages and other monetary issues and by providing for the excessive protection of management rights; (2) at the state level, statutes (Texas, Georgia) or absence of statutes (Louisiana, New Mexico and South Carolina) and administrative and judicial decisions, which reduce the number of matters that had come under collective bargaining for many years by invoking the clause on "management rights" to avoid ruling themselves on certain questions which public employees would like to be able to negotiate, or by suppressing traditional rights concerning these questions on which they previously negotiated their conditions of employment; and (3) the judicial or legislative cancellation of current collective agreements (Virginia) and discrimination against trade union organisations such as the refusal to grant check-off facilities to some unions because of their national affiliation (Tennessee).
2. 802. First, regarding the alleged restricted scope of bargaining at the federal level, the Committee has taken careful note of the descriptions given by the complainant and the Government of the development of public sector bargaining through Executive Order No. 10988 of 1962, Executive Order No. 11491 of 1969 and Title VII of the Civil Service Reform Act (CSRA) which came into force in 1979. It notes in particular that these developments have led to an improvement in the situation of the collective bargaining rights of federal public employees. The United States federal legislation has clear provisions permitting negotiation: section 7101 of the CSRA states "labour organisations and collective bargaining in the civil service are in the public interest" and section 7102 lists among employees' rights "the right ... to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this Chapter".
3. 803. The Committee notes that section 7102(14) of the CSRA defines bargaining of "conditions of employment" to exclude, inter alia, matters specifically provided for by federal statute. Since pay and benefits are set by such statute, this means that the bargaining protected under Title VII is clearly restricted. Section 7106(a) also excludes from bargaining a number of "management rights" (such as the right to determine the mission, budget, organisation, number of employees and internal security practices of an agency; to hire, assign, direct, lay off, suspend, remove, reduce in grade or pay or take other disciplinary action against an agency's employees; to assign work and to contract out; to promote employees).
4. 804. The Government acknowledges the restrictions contained in Title VII of the CSRA. However, it argues that, for certain non-negotiable subjects (section 7106's management rights), management must nevertheless negotiate the procedures it will use in exercising these rights and must negotiate arrangements for employees adversely affected by management decisions (as laid out in section 7106(b)). The Government also defends the exclusion of certain matters from the bargaining process by arguing that the courts have ruled that "management rights" are not without limits and by stressing the consultation rights afforded to labour organisations under section 7117(d) of the CSRA. Under this provision, a labour organisation which meets the requirement of representing 3,500 or more employees must be informed by the employer of any proposed substantive change in conditions of employment and any views it presents thereon must be considered by the employer before the employer takes final action, and inform the labour organisation in writing of the reasons for taking the final action.
5. 805. The Committee is not convinced that the consultation provisions (which depend on certain representativity criteria) attenuate this restriction on the scope of bargaining. The ILO supervisory bodies have had occasion in the past to examine legislation limiting collective bargaining on certain subjects in the public sector. The Fact-Finding and Conciliation Commission on Freedom of Association has stated that there are certain matters that clearly appertain primarily or essentially to the management and operation of government business; these can reasonably be regarded as outside the scope of negotiation. This Committee has added that it is equally clear that certain other matters are primarily or essentially questions relating to conditions of employment and that such matters should not be regarded as falling outside the scope of collective bargaining conducted in an atmosphere of good faith and trust (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 630).
6. 806. The Committee, in applying this criterion to the facts of the present case, considers that the exclusion from the bargaining process of wages and other benefits and monetary items does not meet the requirements of the principle of voluntary collective bargaining. It is of the opinion that governments should give priority to collective bargaining, in the fullest sense possible, as the means of determining employment conditions. If employment conditions cannot be set in this way, governments could be guided by the principles of Article 7 of the Labour Relations (Public Service) Convention, 1978 (No. 151): measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for negotiation of terms and conditions of employment between the public authorities concerned and public employees' organisations or of such other methods as will allow representatives of public employees to participate in the determination of these matters. Although the Committee has recognised that this Article permits some flexibility in the choice of procedures for determining conditions of employment, it has always insisted on the terms of Article 8 of this Convention. That Article prescribes that the settlement of disputes arising 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 is strengthened in recommending this approach in the present case in view of the 1991 testimony of the Director of the Office of Personnel Management, referred to by the Government itself, where he refers to the expansion of the scope of federal collective bargaining.
7. 807. On this issue of disputes settlement procedures at the federal level, the Committee takes note of the example described by the complainant of the dispute at the US Naval Ordnance Station in Louisville, Kentucky. There it took four years (1986 to 1990) and much acrimony to arrive at a negotiated collective agreement. The Committee has considered the Government's description of the evolution of settlement procedures under various pieces of legislation, culminating in the present system under the CSRA of mediation and conciliation services and the Federal Service Impasses Panel parallel to the option of recourse to voluntary binding arbitration at the request of both parties. The Committee also notes the statistics provided by the Government to prove the improvement in the time taken to handle cases coming before these bodies, as well as the Government's descriptions of methods being used to develop innovative labour-management cooperation in the federal civil service and federal agencies so as to pre-empt disputes. In addition, the Government refers to an earlier case against the United States (No. 1074, 211th Report of the Committee, paras. 342 to 372, approved by the Governing Body in November 1981) where this Committee was called upon to examine the federal disputes settlement procedures.
8. 808. The Committee recalls that in that case it was not able to uphold the allegation that adequate procedures did not exist to safeguard the interest of federal employees not enjoying the right to strike. In the present case, the Committee has not been informed of any change to that legislation which would require a different conclusion today. However, it notes with concern that in the Louisville, Kentucky plant cited as an example of the malfunctioning of the system, the present collective agreement took four years to conclude, and the two previous agreements had taken five and seven years respectively. While the Government considers that settlement was "the fruit of the Act's machinery designed to facilitate and encourage collective bargaining", the Committee considers that the length of time taken to conclude agreements in that particular agency cannot be conducive to sound industrial relations there. It accordingly trusts that future bargaining at the US Naval Ordnance Station in Louisville, Kentucky will take place in a better atmosphere.
9. 809. Secondly, at the state level, regarding the alleged absence of statutory collective bargaining rights (in particular in Louisiana, New Mexico and South Carolina), limited bargaining rights (in Texas and Georgia) and the weakening of such rights by administrative and judicial decisions upholding wide "management rights", the Committee notes the Government's assertion that, at the state and local level, collective bargaining is common. In particular, the Government relies on June 1991 figures showing that 43 states and 14,381 local governments had a collective bargaining policy and/or meet and confer arrangements. It also mentions court support for negotiations in recent decisions which hold that a public employer has the authority to engage in collective bargaining voluntarily even in the absence of enabling legislation. It stresses the diversity of the bargaining systems throughout the various state and local jurisdictions, pointing out that a few states recognise the right to strike for public employees. The Committee takes particular note of certain improvements in some of the states singled out for specific mention by the complainant: New Mexico passed legislation providing comprehensive bargaining rights for state employees on 3 March 1992; Washington's legislation was extended to senior court employees for all employment issues in March 1992; and in West Virginia, although a collective bargaining Bill did not pass, a study commission has been set up to report back to the State Legislature in 1993.
10. 810. The Committee recalls that Convention No. 98 permits the exclusion of "public servants engaged in the administration of the State" from the guarantees of the Convention. In this connection, the Committee of Experts on the Application of Conventions and Recommendations has pointed out that, while the concept of public servant may vary to some degree under the various national legal systems, the exclusion from the scope of the Convention of persons employed by the State or in the public sector, who do not act as agents of the public authority (even though they may be granted a status identical with that of public officials engaged in the administration of the State) is contrary to the meaning of the Convention. The distinction to be drawn, according to the Committee, would appear to be basically between civil servants employed in various capacities in government ministries or comparable bodies and other persons employed by the government, by public undertakings or by independent public corporations (Digest, para. 598).
11. 811. The Committee, while conscious of the country's federal structure and the approach of the Supreme Court to extend federal protection of state employees' bargaining rights, notes with concern that, according to the documentation supplied by the complainant, ten states have no bargaining legislation (Arizona, Arkansas, Colorado, Louisiana, Mississippi, North Carolina, South Carolina, Utah, Virginia, West Virginia) or only limited statutes (for example, only fire-fighters and police are covered in Kentucky and only fire-fighters in Wyoming) or enforce an administrative ban on all collective bargaining (Texas). As the Government has not replied in detail on the choice of procedure in each state for ensuring negotiation or some other method allowing representatives of public employees to participate in the determination of their terms and conditions of employment, it is difficult for the Committee to assess whether the principles of collective bargaining are being fully respected for state and local government employees. It is thus necessary for the Committee to receive from the Government more information in order to assess whether the principle of collective bargaining has been fully respected in each individual state mentioned in the present case.
12. 812. Thirdly, the Committee regrets that the Government has not supplied specific comments on the alleged suspension of current collective agreements in Virginia and the refusal to grant check-off facilities to independent unions in Tennessee. It accordingly requests the Government to transmit its comments as soon as possible.

The Committee's recommendations

1. 813. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee considers that all public service workers other than those engaged in the administration of the state should enjoy collective bargaining rights and asks the Government to supply information on the legislative situation in the states mentioned in this case so that the Committee will be able to assess whether the right to bargain collectively is being respected in such states.
   • (b) The Committee draws the Government's attention to the importance which it attaches to the principle that priority should be given to collective bargaining in the fullest sense possible as the means for the settlement of disputes arising in connection with the determination of terms and conditions of employment in the public service.
   • (c) The Committee notes with concern that in the Kentucky plant cited as an example of the malfunctioning of the disputes settlement procedures at the federal level, the present collective agreement took four years to conclude; it considers that the length of time taken to conclude agreements in that particular agency cannot be conducive to sound industrial relations there and accordingly trusts that future bargaining at the US Naval Ordnance Station in Louisville, Kentucky will take place in a better atmosphere.
   • (d) The Committee requests the Government to transmit its specific comments as soon as possible on the alleged suspension of current collective agreements in Virginia and the refusal to grant check-off facilities to independent unions in Tennessee.