Observation (CEACR) - adopted 2001, published 90th ILC session (2002)

1. The Committee has noted the Government’s report with its reply to the Committee’s earlier request for information. The Committee also has noted a communication dated 11 September 2001 of the International Confederation of Free Trade Unions (ICFTU), submitting comments on the observance of the Convention in the United States, a copy of which has been forwarded to the Government for any comments it may wish to make on the matters raised therein.

2. In its communication dated 11 September 2001, the ICFTU referred to the Committee’s concern as to whether violation of a no-strike injunction could be classified as criminal contempt, with the consequence that due process would attach and the person could then be convicted and sentenced to prison labour, in violation of Convention No. 105. This matter will be considered in paragraph 5 et seq. below.

3. In its communication, the ICFTU further commented in some detail on widely varying conditions of employment in prison industries in different US states and their role in the private sector and international trade. It also made the following allegations of forced labour by migrant workers.

Some of the employment in territories under the control of the United States Government amounts to forced labour. Since the 1980s the United States Commonwealth of the Northern Mariana Islands has developed a garment industry based on the ability of these islands to ship products duty free and without quotas to the United States. This status, together with local control of wage and immigration laws, has had the practical effect of introducing a system of indentured servitude into the territory. Local authorities permit foreign-owned companies to recruit thousands of foreign workers, mainly young women from Thailand, China, the Philippines and Bangladesh. The workers are recruited by private agencies that demand exorbitant fees from these workers. Fees are either paid in advance or are deducted from pay in an arrangement that requires the workers to remain in the employ of the same manufacturer who in turn has a relationship with the recruiting agency.

In addition to the abuse of fee-charging, these foreign workers are routinely required to sign employment contracts where they agree to refrain from asking for wage increases, seeking other work and from joining a union. The workers are informed that contract violations will result in dismissal as well as deportation and that the workers concerned must pay the travel expenses to return to their home country.

Many similar conditions are faced by migrant domestic workers coming to the United States under the various applicable employer-related visa schemes. These workers are often victims of physical abuse, face severe restriction on their freedom of movement, and work under conditions tantamount to slavery. Many migrant domestic workers are paid far less than the minimum wage, and, under the terms of their visa, face deportation for leaving their employer to escape from these oppressive conditions.

The ICFTU concluded that:

There are grounds for serious concern about commercial production by prisoners in the United States and about practices amounting to forced labour by exploited migrant workers (mainly women) in United States dependent territories, and migrant domestic workers in the United States.

4. The Committee takes due note of these allegations. As regards the Northern Mariana Islands, the Committee observes that the Abolition of Forced Labour Convention, 1957 (No. 105) is not among the ILO Conventions which have been declared applicable to that territory by the United States. As regards the conditions faced by migrant workers coming to the United States, the Committee hopes that the Government will present its comments on the allegations made by the ICFTU.

5. The Committee previously noted the Government’s indication that persons imprisoned for engaging in illegal strikes, who are jailed for contempt of court, are considered pre-trial detainees under United States law and practice and as such are not subject to prison labour. In respect of the distinction between criminal and civil contempt and its implications regarding an obligation to perform prison labour, the Government supplied, inter alia, information on the Supreme Court finding in United Mineworkers v. Bagwell, 512 U.S. 821 (1994), that the union’s failure to obey an injunction regarding unlawful strike-related activities constituted criminal contempt. The Government pointed out that the court did not appear to have sentenced any union members or officials in Bagwell to jail for contempt. The Committee requested the Government to supply further information on the development of law and practice in this field, indicating, in particular, whether in law, union members or officials might be sentenced to jail for criminal contempt in circumstances comparable to Bagwell and, if so, whether these would be considered pre-trial detainees under United States law and practice or be granted on a different basis a comparable status exempting them from an obligation to perform prison labour.

6. In response to the Committee’s request, the Government supplied several examples of court decisions and indicated that it remains the understanding of the United States that persons who are jailed for contempt are considered pre-trial detainees and, as such, are not subject to prison labour. In addition, it emphasized that jailing anyone for contempt of court in the context of a labour dispute is not a common practice in the United States. For example, it noted that in Bagwell, which involved very serious contempt allegations within a labour dispute, it appears that no one was jailed for any purely labour-related, as opposed to criminal, offences.

7. The Committee notes these indications, which do not, however, appear to cover the full range of national law and practice regarding the punishment, with penalties involving compulsory labour, of persons engaging in prohibited strikes, particularly at the state and local levels.

8. The Committee notes that under Chapter 95 (Department of Labor and Labor Regulations), article 12, section 95-98.1 of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the State. No person holding a position either full- or part-time by appointment or employment with the State of North Carolina or in any county, city, town or other political subdivision of the State of North Carolina, or in any agency of any of them, shall wilfully participate in a strike by public employees. Under section 95-99, any violation of the provisions of article 12 is declared to be a Class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A 1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a Class 1 misdemeanour may be sentenced to "community punishment" and, upon a second conviction, to "active punishment", that is imprisonment. Article 3 (Labor of Prisoners), section 148-26 of Chapter 148 (State Prison System) declares it to be the public policy of the State of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them. The failure of any inmate to perform such a work assignment may result in disciplinary action.

9. Under Article 1(d) of the Convention, states are obliged to abolish all penalties involving any form of compulsory labour which may be imposed as a punishment for having participated in strikes. There is no exception to this rule in the Convention.

As the Committee indicated in paragraph 123 of its 1979 General Survey on the abolition of forced labour, it has nonetheless considered that it is not incompatible with the Convention to impose penalties (even if involving an obligation to perform labour) for participation in strikes in the civil service or other essential services, provided that such provisions are applicable only to essential services in the strict sense of the term (that is, services whose interruption would pose a clear threat to the life, personal safety or health of the whole or part of the population) and that compensatory guarantees in the form of appropriate alternative procedures are provided.

10. The sweeping provisions of the North Carolina General Statutes quoted in paragraph 8 above do not meet these criteria and are contrary to Article 1(d) of the Convention. The Committee hopes that the necessary measures will be taken to bring the abovementioned provisions of the North Carolina General Statutes into conformity with the Convention, and that the Government will report on action taken to this end. The Committee also hopes that more generally, legislation and practice at the level of the states will be reviewed in the light of Article 1(d) of the Convention, and that the Government will report on the findings.