Definitive Report - Report No 127, 1972

1. 48. The complaint of the International Federation of Free Teachers' Unions is contained in a communication addressed direct to the ILO on 21 April 1970. A copy of the complaint was transmitted to the Government of the United States for its observations. The Government, in a communication dated 18 May 1970, signified its intention of replying to the allegations when it had received any further information which the complainants might forward within the space of one month as provided for by the procedure in force.
2. 49. Since the complainant organisation had not availed itself of this right, the Government was requested to send its observations on the original complaint and the Committee, in addition, indicated to the Government certain specific points on which it wished to have information from the Government. This information was sent by a communication dated 15 July 1971.
3. 50. The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), or the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 51. The complaint concerns the imprisonment of Mr. David Selden, President of the American Federation of Teachers, for having taken part in a strike-picketing action. The complainants allege that the measures taken against the Federation and its President are totally at variance with the Recommendation concerning the status of teachers and with ILO instruments on freedom of association and collective bargaining. According to the complainants, the Newark Teachers' Union was able, as a result of this strike, to conclude a collective agreement which provided for substantial improvements in the conditions of both students and teachers. It is alleged that without this action the situation would have continued to deteriorate. The complainants further point out that the prison sentences and fines were inflicted after the conclusion of this collective agreement, and ask for the support of the ILO in putting an end to the use of judicial injunctions in cases of labour conflicts in the public services, in so far as such conflicts do not directly threaten the security of the State.
2. 52. The Government contends that, in this case, there has been no infringement of trade union rights or breach of any of the international instruments cited in the complaint. The Government points out that strikes by public employees are prohibited in the state of New Jersey, where the strike occurred. Conferring such right on public employees must be deliberately expressed in legislation and is not to be implied. The Government adds that the New Jersey Employer-Employee Relations Act, as amended by Ch. 303, L. 1968, effective from 13 September 1968, provides mediation and arbitration procedures for the settlement of labour disputes in public employment, but does not provide the right to strike in such employment. In addition, the Government states that the issuance of court injunctions, in connection with strikes and related picketing found to be illegal, is an integral part of both federal and state labour law in the United States and any increase in the use of injunctions would only reflect an increase in what has traditionally been viewed as illegal strikes and related activity.
3. 53. The Government provides the following account of the events surrounding the dispute which gave rise to the allegations. On 5 December 1969, under the New Jersey Employer-Employee Relations Act, the Public Employment Relations Commission certified the Newark Teachers' Union, Local 481, American Federation of Teachers, AFL-CIO, as the representative for the purpose of collective negotiations for teachers in the appropriate units of teachers in the public schools of the City of Newark, New Jersey. These schools are conducted, equipped, and maintained by the Board of Education of Newark in the County of Essex. The Board is a body corporate and a governmental agency of the state of New Jersey. Pursuant to this certification, a negotiating Committee of the Board met with the Union and its representatives on 12 December 1969, at which time ground rules were agreed upon for negotiating a new teachers' contract. A proposed agreement was delivered by the Union to the negotiating Committee on 30 December 1969. At this meeting and a later one on 5 January 1970, the Committee informed the Union that the Board of Education's budget had to be submitted by 1 February 1970, and requested that budgetary matters in the proposed over-all contract be given priority. It appears that the Union did not accept this proposal. Subsequently, meetings for negotiation on the total contract were held on a daily basis with a total number of hours, exceeding 200 by 29 January 1970. Midway through these meetings, the Union indicated that their policy from 31 January 1970 would be " no contract, no work ". The Union rejected the budget proposals of the negotiating Committee. On 31 January 1970, the Superior Court of New Jersey Chancery Division, Essex County, issued an interim restraining order, enjoining the Union from the contemplated strike and picketing or other related acts in support of the strike. On 10 February 1970, the Court found the Union and its representatives in violation of the restraining order and stated that after the arrest of any person observed in continued violation, a determination would be made whether contempt proceedings would be warranted.
4. 54. The Government adds that the Union ignored the restraining order, struck on 2 February 1970, and closed down the city's 78,000 pupil system, the largest in the state. On 18 February 1970, Mr. David Selden, President of the American Federation of Teachers, was arrested for taking an active part in the picketing as he marched in front of the McKinley Street Elementary School and charged with contempt for having ignored the restraining order. He refused the services of the lawyer for the Newark Teachers' Union and also refused to accept his release on bail of $2,500. The others arrested at the time were released on their own recognisance as New Jersey residents, but bail was set for Mr. Selden because he lives outside the state.
5. 55. The presiding judge at the hearing of the contempt case against Mr. Selden (which was held on 9 March 1970), found that he had " wilfully engaged in picketing in front of McKinley School and did by that action and others promote and encourage the strike against the Newark Board of Education thereby acting and abetting and acting in concert with the Newark teachers and its members in fostering that strike". The sentence was that Mr. Selden be committed to the Essex County Penitentiary for 60 days and credit given for whatever time had already been spent there. Local records indicate that Mr. David Selden was imprisoned in the Essex County Penitentiary, Caldwell, New Jersey, from 13 March to 1 May 1970.

B. B. The Committee's conclusions

1. 56. The Committee has taken the view that allegations relating to the right to strike are not outside its competence in so far as they concern the exercise of trade union rights. With regard to essential services or the public service, the Committee has stressed the importance it attaches, whenever strikes are forbidden in these services or subject to restriction, to ensuring adequate guarantees to safeguard to the full the interests of the workers thus deprived of an essential means of defending their occupational interests. It has also pointed out that the restriction should be accompanied by adequate, impartial and speedy conciliation and arbitration procedures, in which the parties can take part at every stage and in which the awards are binding in all cases on both parties; these awards, once they have been made, should be fully and promptly implemented.
2. 57. In the present case the Committee notes that strikes by public employees are prohibited in the state of New Jersey but that by virtue of the Employer-Employee Relations Act, which applies to public officials, extensive negotiation, mediation and arbitration facilities are provided for the settlement of labour disputes in the public sector. With regard to the arbitration facilities the Committee notes, however, that this procedure is voluntary, depending on the agreement of the parties. In any event, the strike was declared while negotiations were still in progress and for the reason that no contract had been obtained at a certain date, thus interrupting the normal operation of the dispute settlement machinery provided for in the law. The Committee further notes that, by virtue of an interim restraining order, the Union was enjoined from the contemplated strike and picketing, or other related acts in support of the strike. This court order was ignored by the Union and it was as a consequence of the breach of this restraining order that Mr. David Selden was charged and subsequently imprisoned, following court proceedings.