Informe provisional - Informe núm. 230, Noviembre 1983

Caso núm. 1130 (Estados Unidos de América) - Fecha de presentación de la queja:: 16-ABR-82 - Cerrado

1. 459. The Committee has already examined this case at its November 1982 meeting when it presented interim conclusions to the Governing Body. Since then, the Capitol Employees Organising Group (CEOG) has sent additional information in communications dated 22 December 1982, 17 and 25 January, 3 February, 11 August and 21 September 1983. The Government transmitted communications dated 18 February, 13 May and 18 October 1983 concerning the case.
2. 460. The United States of America 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. 461. The Committee observed that, according to the CEOG, - a trade union formed in December 1979 and representing a majority of Senate restaurant employees - the US Senate had refused - since the CEOG's first recognition petition dated 3 March 1980 - to grant it exclusive bargaining agent status for employees of the Senate restaurants and was harassing its members. The Committee further noted that a high-level Senate study into this situation was under way and it requested the Government to supply a copy of the findings and recommendations of the study, which, according to the Government, was to be completed, hopefully, before March 1983. In the meantime the Committee expressed the hope that the study and dialogue between the parties would ensure a situation in which the workers concerned might carry out normal trade union activities in full conformity with the principles of freedom of association.

B. Further developments

1. 462. On 22 December 1982, the CEOG communicated additional information to the effect that in mid-1980 the management had convened a meeting with a representative of the union and officials of the Hotel and Restaurant Employees Union Local 25 in order to direct the restaurant workers to organise through Local 25. The CEOG decided not to associate with Local 25 because the constitution of that Local disfranchises those union members who are not American citizens, whereas about 20 per cent of the CEOG's members are Hispanic Americans who do not hold US citizenship. The CEOG complained thereafter to the management about certain anti-union activities such as inviting Local 25 representatives to the restaurants to distribute literature when CEOG representatives were absent. In addition, the CEOG states that, on 21 October 1982, it requested the President of the Senate to introduce a petition to the Senate to amend Senate Rule 50 which at present prohibits discrimination but provides no enforcement mechanism or remedies. According to the CEOG, although the Senate met throughout December, its petition was not recorded in the Senate Journal in accordance with Senate Rules although many petitions from ordinary citizens and organisations were presented to the Senate for action and it has received no notice that its petition was somehow technically deficient, thus preventing its presentation, nor has it received any information as to the fate of the petition.
2. 463. In its communication of 17 January 1983, the CEOG explains that, on 15 December 1982, it presented the Senate Committee on Rules and Administration with a proposed contract between the CEOG and the Architect of the Capitol (the employer), which includes remedies for grievances, in an attempt to end the tension in the restaurants. According to the complainant, despite its declaration of willingness to negotiate the terms of the agreement, no reply has been received.
3. 464. In its communication of 25 January 1983, the CEOG supplies a copy of the reply of the Senate Committee stating that it has no authority to accord exclusive recognition to any labour organisation or to engage in collective bargaining with it. The CEOG again raises the comparison of other Congressional employees - the employees of the Library of Congress and the Government Printing Office - who have the right to collective bargaining under the Civil Service Reform Act, 1978, and who had been negotiating with the management before the passage of that Act. The complainant states that the Senate Committee met on 25 January 1983 - the CEOG being present - and discussed the restaurant employees' situation in terms of turning the Senate restaurants over to a private employer. In previous communications the CEOG has stated its unease at this alternative because it would constitute an attempt to thwart the creation of a free, democratic trade union movement in the Senate. In its communication of 3 February 1983, the CEOG complains that Senate restaurant employees were expressly forbidden to attend a major parade in Washington whereas the President of the United States had given all Executive Branch employees two hours' administrative leave to join the parade.
4. 465. In its communication of 11 August 1983, the complainant states that the Senate Committee has decided to organise a poll in September among Senate restaurant employees to determine whether they wish to become members of a union and whether they prefer to work for a private employer. The CEOG cites a 1969 US Supreme Court decision obligating employers to bargain with a union once that union can prove that it represents a majority of the concerned workers. In addition it alleges that the management is continuing its unfair labour practices by trying to discredit the CEOG and its officers. In its. most recent communication of 21 September 1983, the CEOG states that on 12 and 13 September the US Senate Committee conducted the poll among 210 eligible restaurant employees, asking them, among other things, if they wished to become "a member of a union for the purposes of collective bargaining". According to the CEOG, such a poll would not ordinarily be permitted under US labour laws following the numerous unfair labour practices of the type the Senate has engaged in during the three-and-a-half years preceding the poll. Nevertheless, the CEOG points out, the election was conducted in a manner which also violates US labour-management fairness standards. For example: the management encouraged a number of employees to prepare and distribute a leaflet attacking the CEOG and alleging that a union victory would cost the employees their jobs; management officials met with a number of Hispanic-American employees and told them that a vote for the union could mean they would be thrown out of work; although a CEOG member was permitted to participate in the ballot-counting, no CEOG member was permitted to observe or monitor the election process as the balloting took place; the employer conducted its own election according to its own rules and procedures after formulating its own questions without consulting the CEOG about the procedures or the questions and without a neutral third party conducting the balloting as it requires other public and private employers to do under the nation's labour relations statutes; a management official was seen instructing employees on how to mark their ballots. The complainant attaches a signed statement of a witness to this last allegation.
5. 466. In a communication dated 18 February 1983 the Government makes reference to the 25 January meeting of the Senate Committee on Rules and Administration at which it was decided that, in order to gain a better understanding of the number and variety of maintenance and operations jobs potentially affected by a decision on organizational rights, the Committee's staff would prepare a total inventory of all categories of permanent personnel of the Senate, including the terms of their contracts and their status as salaried or non-salaried workers. From a copy of the minutes of the meeting - supplied by the Government - it appears that the question will remain on the Committee's agenda until the overall study is completed.
6. 467. The Government, in its communication of 13 May 1983, states that in May 1983 the Senate Committee examined the inventory and decided to examine the question of turning the restaurant management over to private firms (which are subject to the general labour legislation) and to study how this would affect present restaurant staff, in particular the protection of wages and other benefits. It undertakes to keep the Committee informed of the outcome of this study.
7. 468. In the annexes attached to this communication the Government explains why the CEOG's petition of 21 October 1982 has not been placed before the Senate: under the relevant Senate Rules, such petitions will not be recorded in the Senate Journal unless any Senator requests that they be laid before the Senate; this did not happen for the CEOG's petition. It also explains that the refusal to allow the restaurant employees to attend a major parade in Washington was not harassment because the Presidential Order granting 2 hours' leave to executive branch employees to attend the parade did not apply to those Executive Branch restaurant workers employed by private firms nor to legislative branch employees; there was also concern over feeding the congressional employees within that time.
8. 469. To its communication of 18 October 1983 the Government annexes a copy of the minutes of the August meeting of the Senate Committee on Rules and Administration at which it was decided to conduct a secret ballot of restaurant employees to decide whether they would like to organise for collective bargaining purposes or to work for a private concessionaire. Two hundred and fourteen employees were determined to be eligible to vote, management, temporary and probationary employees being excluded. Sample ballots and voting procedures were posted on restaurant bulletin boards and were included in eligible employees' pay envelopes on 2 September 1983. The ballot took place on 12 and 13 September 1983 and the Government indicates that 187 or 89 per cent of eligible employees voted. The results are as follows: 35 (19 per cent) employees wished to become a member of a union for collective bargaining purposes and 146 (81 per cent) did not; 26 (15 per cent) employees agreed to private management if their wage and employment benefits could be guaranteed and 149 (85 per cent) did not. To a third question concerning outside management without guarantees as to current wage and employment benefits 11 (6 per cent) employees agreed and 165 (94 per cent) disagreed. The fourth question requested a rating of the present management between poor - below average - average - above average - excellent. According to the Government, the results of the ballot will be used solely by the Senate Rules Committee to assist in its review of the issues concerning the management and operation of the Senate restaurants; the Committee is to meet on this in the near future.

C. The Committee's conclusions

1. 470. The Committee notes that the results of the Senate Committee study into the situation of the CEOG - which claims to represent the majority of Senate restaurant employees - led the Senate Committee to call for a further study, this time into the effects of turning the restaurant management over to private firms (which are subject to the general labour legislation) and to organise a ballot of the employees concerned. The Committee also notes that since its last examination of the case the complainant has supplied information concerning management harassment of its members such as inviting other unions to the workplace, silence on the presentation of a petition and a proposed contract, refusing time off to attend a major parade and employer interference in the polling of restaurant employees.
2. 471. While appreciating the thoroughness of the Senate studies and the time required to organise the ballot, the Committee would recall that the CEOG's original claim for recognition dates from March 1980 and that the Senate has been studying this question since August 1982. The Committee would point out that excessively lengthy proceedings to determine the status of employees and bodies claiming to represent them can result in a growing sense of injustice and it requests the Government to send a copy of the findings and recommendations of the Senate Rules Committee study of the question, which it hopes will be completed rapidly. In the meantime, the Committee would once again express the hope that a dialogue may continue between the parties and that the conclusions of the second study will result in a situation in which the workers concerned may be able to carry out normal trade union activities in full conformity with the principles of freedom of association.
3. 472. As regards the alleged harassment of unionised staff, while appreciating the Government's explanations as to the treatment of the CEOG's petition and proposed contract as well as to the refusal of time off, the Committee would point out that if these explanations had been made to the staff involved at the various meetings with the employer and the Senate Committee itself, the ongoing tension in the Senate restaurants might have been avoided. In the absence of more specific replies from the Government, the Committee would recall that no person should be prejudiced in his employment by reason of his trade union membership, even if that trade union is not recognised by the employer as representing the majority of workers concerned. It trust that, pending the outcome of the further Senate study, care will be taken to avoid any form of discrimination towards Senate restaurant workers who are members of the CEOG.
4. 473. The Committee, while taking note of the recent specific allegations concerning the September opinion poll, observes that the Government has not yet had an opportunity to reply to them. It would make a preliminary observation, however, based on the detailed information supplied by the Government in its October communication, that the actual running of the ballot and the layout and content of the ballot form do not jeopardise trade union rights.

The Committee's recommendations

1. 474. In these circumstances, the Committee recommends the Governing Body to approve this interim report, in particular the following conclusions:
   • (a) The Committee requests the Government to send a copy of the findings and recommendations of the Senate study into the situation of Senate restaurant workers, which will bear upon any possible recognition of the Capitol Employees Organising Group, and which the Committee hopes will be completed rapidly.
   • (b) The Committee again expresses the hope that a dialogue may continue between the parties, and that the conclusions of the study will result in a situation in which the workers concerned may be able to carry out normal trade union activities in full conformity with the principles of freedom of association.
   • (c) As regards the alleged harassment of the members and leaders of the complainant union, the Committee, while appreciating the Government's explanations of these incidents, would point out that no person should be prejudiced in his employment by reason of his trade union membership or activities, even if that union is not recognised by the employer as representing the majority of workers concerned. The Committee trusts that care will be taken to avoid any form of discrimination towards CEOG members.
   • (d) The Committee requests the Government to transmit as soon as possible its observations on the specific allegations of employer interference in the opinion poll that was taken amongst the restaurant workers in September 1983.