Definitive Report - Report No 284, November 1992

1. 138. The United Food and Commercial Workers International Union (UFCW) presented a complaint of violations of trade union rights against the Government of the United States in a communication dated 5 March 1990. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO) and the International Federation of Commercial, Clerical, Professional and Technical Employees (FIET) expressed their support to the UFCW's complaint in communications dated respectively 13 March and 9 April 1990. The Government submitted its observations in a communication dated 19 October 1990.
2. 139. At its February 1991 meeting, the Committee invited the complainant and the Government to provide any supplementary observations they wanted to submit in this case, following which the UFCW forwarded new communications on 7 June and 28 October 1991, and 11 and 20 February 1992. The Government submitted supplementary observations in communications dated 4 October 1991, and 10 January and 8 May 1992. The Government also attached to each of its communications submissions of the United States Council for International Business (USCIB), dated 19 August and 16 September 1991, and 9 January and 4 May 1992. The Government indicated that, while those submissions are independent of its own observations, it believed that the Committee could benefit by examining the case from all perspectives and expected it to take this material into full consideration.
3. 140. 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. The complainant's allegations

1. 141. In its communication of 5 March 1990, the UFCW alleges that American labour laws and their enforcement do not adequately protect trade unions' and workers' rights, including freedom of association and the right to organise, against the anti-union conduct of certain employers. The complainant further states that, even when the National Labor Relations Board (NLRB) has reasonable cause to find that organisational rights are violated, the legal remedies prove to be ineffective. Finally, the UFCW contends that sections 10(J) and (L) of the National Labor Relations Act (NLRA) treat unequally trade unions and employers.
2. 142. The particular complaint arises out of what the UFCW terms the anti-union conduct of Delhaize-Food Lion, a transnational enterprise based in Belgium operating food stores in the United States. By 1985, Food Lion had expanded its operations to some 300 stores in Virginia, North Carolina and South Carolina. Food Lion's usual strategy is to launch a competitive war based on lower food prices to take the market away from established competitors, which it can achieve by paying wages and benefits substantially lower than the compensation packages prevailing in the local retail food industry. The net result is that wages and benefits in that industry have been dragged down by Food Lion's growth strategy. Furthermore, Food Lion did not create new jobs; it simply hired at lower wages some of the former workers from the stores it put out of business with its lower labour costs.
3. 143. UFCW Local 400, a local union representing thousands of retail workers in the District of Columbia, Maryland and Virginia, responded to Food Lion's attack on area labour standards by exercising the picketing and handbilling rights guaranteed by sections 1, 7 and 8(A)(1) of the NLRA (for ease of reference, the relevant sections of the Act are appended to this document).
4. 144. The complainant states that such informational picketing is legal, according to a well-established NLRB jurisprudence. Nevertheless, after pickets appeared in front of the Food Lion stores, Food Lion management threatened them with arrest. The NLRB had reasonable cause to find that such threats violated sections 8(A)(1) and 7 of the NLRA, because it issued complaints in at least two cases (Food Lion Inc., Culpepper, Virginia, complaint issued alleging that Food Lion had violated section 8(A)(1) of the NLRA by denying the union access to consumers and by threatening the arrest of union pickets; McMahon-Carver Properties, Fredericksburg, Virginia, complaint against the owner of a shopping centre, where Food Lion was a tenant-lessee, for having denied the union access to consumers and by threatening the arrest of union representatives). In these two cases, the complaints were settled before trial. Food Lion agreed to post NLRB notices in the employee areas of its Culpepper and Fredericksburg facilities. (When the NLRB is prepared to issue a complaint against an employer for alleged violations of section 8(A)(1) of the NLRA, notice-posting is the usual result of the informal settlement process.) In these postings, Food Lion promised not to violate the organisational rights guaranteed in section 7. However, the notices also made clear that Food Lion was not admitting that it had actually violated the law in the past. That did not deter Food Lion from further violating the law.
5. 145. By December 1988, UFCW Local 400 had made several efforts to organise Food Lion employees. The union organisers attempted to communicate with the employees in non-work areas, in non-work time, in 14 different stores throughout Virginia. On every occasion, Food Lion threatened the organisers with arrest. Local 400 filed several charges with the NLRB, alleging that Food Lion had violated section 8(A)(1) by promulgating an overly broad no-solicitation rule, by enforcing that rule in a discriminatory fashion, and by threatening the arrest of non-employee organisers "who simply informed management that they wished to speak to employees about the union in non-working time in non-working areas, and who were otherwise acting in a manner consistent with the enterprise". As the NLRB and the federal courts have long held, freedom of communication is absolutely essential to the free exercise of organisational rights. If employees are to fully exercise these rights, they must have a full and fair opportunity to be informed of the benefits and liabilities of joining a union. As stated by the US Supreme Court (Central Hardware Company v. NLRB, 407 US 539, 543 (1972)), "organizational rights are not viable in a vacuum; their effectiveness depends in some measure on the ability of employees to learn the advantages and disadvantages of organization from others". Because non-employee union organisers are specially trained and experienced in apprising employees of the benefits accruing from unionisation, their role is absolutely critical in ensuring that employees have full access to information. The Supreme Court has also stated that the NLRA "guarantees both the right of union officials to discuss organisation with employees and the right of employees to discuss organisation among themselves".
6. 146. In essence, the union was alleging before the NLRB that Food Lion's no-solicitation policy was unlawfully broad because it prohibited solicitation by non-employees at all times at any location (including non-work times and non-work areas); moreover, the union did not have reasonable alternative means of communication. However, the NLRB decided not to issue a complaint based on the incidents of December 1988. Following the opinion of the NLRB's Associate General Counsel for the Division of Advice to the effect that the union had failed to prove the absence of reasonable alternative means of communication, the Director of NLRB Region 5 decided on 2 May 1989 to dismiss the union's charges. The union challenged that decision before the NLRB General Counsel Office, which dismissed the appeal. Once the NLRB's General Counsel has denied appeal of a Regional Director's decision to dismiss unfair labour practice charges, there is no further review: the charging party has no further recourse with the NLRB or with the courts. By rejecting Local 400's charges concerning the incidents of December 1988, the NLRB interpreted the Labor Act in such a way as to deny freedom of association. The NLRB essentially held that union organisers could not speak with employees in non-work areas of the Food Lion stores in non-work time, even when there was no evidence of interference with the work process. In other words, the NLRB denied the full exercise of section 7 association rights, even when there was no evidence of a countervailing property interest.
7. 147. Although the UFCW totally disagreed with the NLRB's decision, it attempted to exhaust all possible means of communication. For example, the local union attempted an advertising campaign: nevertheless, only a short time before (in 1986), Local 400's advertisements were rejected by almost all of the newspapers of both large and small circulation to which they had been submitted. Local 400 also posted a billboard sign in Harrisonburg, Virginia; the sign was defaced immediately, and the local sheriff informed the union that he could not do anything about the vandalism. With regard to the other means of mass communication which the union attempted to use, not only did radio stations refuse to run the advertisements, the union also found that, as a medium, radio was ineffective since it was unable to target the intended audience, i.e. the employees of Food Lion. Television similarly could not target a specific audience and, in addition, was prohibitively expensive to the union.
8. 148. On 23 June 1989, Local 400 representatives visited a Food Lion store located in Fredericksburg, Virginia. They asked the store manager to give them a copy of the day's schedule. They wanted to determine when particular employees were going to be off duty: this was an effort at identifying employees in order that they might be visited off the store premises, and was precisely a method which the NLRB concluded that the union had not exhausted. None the less, the store manager denied the request. During that same visit, one of the union representatives encountered an off-duty employee, with whom he began to speak in a sidewalk area open to the public, outside the store. Within minutes, the local police appeared on the premises at the behest of the store manager, and told the union representatives that they would have to "leave the premises" because they were "harassing customers". The police said that, if the union representatives did not leave immediately, they would be arrested and taken to jail without a warrant; they told the representatives that the store manager wanted them off the Food Lion property, including the entire parking lot.
9. 149. The local union filed a complaint regarding that incident (hereinafter called the "Fredericksburg case"), alleging that the company had violated section 8(A)(1) of the NLRA. The NLRB No. 5 Regional Office held it had reasonable cause to find that there had been such a violation by Food Lion and issued a complaint. In the decision issued on 15 February 1991 (19 months after the causes of action arose), the Administrative Law Judge (ALJ) Leiner concluded that Food Lion had "interfered with, restrained or coerced employees in the exercise of their rights to organise under section 7 of the Act, thereby violating section 8(A)(l) of the Act ... (These) unfair labor practices ... have affected and do affect commerce within the meaning of section 2(6) and (7) of the Act." The judge ordered Food Lion Inc. to "cease and desist from prohibiting UFCW representatives from engaging in communication with the employees ... or causing the police to threaten such representatives with arrest ...; ... in any like or related manner interfering with, restraining or coercing employees in the exercise of the rights guaranteed them by section 7 of the Act ...". Food Lion then filed exceptions to the NLRB, which affirmed Judge Leiner's conclusions but on different grounds, namely that the employer had "disparately enforced its rule and policies regarding solicitation against the union". The NLRB also rejected a settlement proposed by Food Lion Inc., considering that "it would not effectuate the purpose and policies of the Act".
10. 150. In its first two supplementary observations, the complainant stressed however that the NLRB's decisions are not self-enforcing; only the federal circuit courts can enforce them. The UFCW, at that time, had no idea whether the employer would comply with the NLRB's decision. Therefore, the union's organising efforts continued to be frozen, and freedom of association rights continued to be violated. In effect, Food Lion's continuing illegal behaviour has produced a chilling effect on the union's organising effort; every time the organisers attempt to communicate with Food Lion employees, they are threatened with arrest. The NLRB and the federal courts have failed to stop this chronic practice.
11. 151. In its third supplementary observation (11 February 1992), the UFCW stated that the United States Supreme Court recently rendered in Lechmere Inc. v. NLRB a decision which will have a devastating impact on freedom of association rights for workers in the United States. According to the UFCW, the Lechmere case struck down all recent NLRB precedents which maintained a balance between organisational rights provided for in section 7 of the NLRA and property interests; in effect, the Supreme Court has now declared that private property will assume absolute priority over rights of freedom of association, whenever union organisers are involved.
12. 152. In its fourth supplementary observation (20 February 1992) the UFCW reiterated at some length two of its earlier arguments, which it summarised as follows: (a) the lack of further review of the NLRB General Counsel's decision to dismiss the charges filed by the union against the denial of access to non-work areas in Food Lion stores on non-work time violates freedom of association; and (b) although the NLRB finally concluded that Food Lion had violated the NLRA by threatening the arrest of union representatives who attempted to speak with the employees in the sidewalk areas in front of the stores, this limited access right was irreparably harmed because the United States Government never sought the effective preliminary relief which could have arrested the harm in the beginning.
13. 153. In its initial communication, the complainant had also submitted that the NLRA creates a blatant inequality between unions and employers. On the one hand, section 10(J) provides that the NLRB has the power to seek an injunction in federal district court against violations of the NLRA by a respondent after a complaint has issued; this remedy is known as permissive injunctive relief. In other words, the NLRB could seek an order enjoining Food Lion from its continuing violation of the Act before the trial; however, it has not exercised this power in the instant case. Consequently, the association rights of Food Lion workers are being violated with impunity and without effective remedy. On the other hand, section 10(L) of the NLRA provides that when a union has engaged in allegedly unlawful conduct under the NLRA and a complaint is to issue, the NLRB is obligated to seek an injunction in federal court. In short, employers who suffer from union unfair labour practices are entitled to the mandatory injunctive provisions of the NLRA. Unions and employees who suffer from employer unfair labour practices may receive injunctive relief but only if the NLRB chooses to seek it. In effect, there is no equal protection under the NLRA with respect to injunctive remedies. In its communication of 13 March 1990 in support of the complaint, the AFL-CIO called special attention on this aspect of the case, pointing out the built-in bias in United States labour legislation; for example, even in cases as serious as discharge of workers for union activities, the NLRB is not obliged to seek an injunction, whereas it must do it in the case of certain unfair labour practices committed by unions.
14. 154. Throughout its communications, the complainant concluded that the facts of this case indicate that the United States Government's protection of freedom of association is altogether ineffective and asked the Committee to do everything within its power to ensure that association rights are fully restored. This case is not isolated; rather it is symptomatic of a much larger and disturbing reality in the United States.

B. The Government's reply

1. 155. In its communication of 19 October 1990, the Government replies that its laws are generally in compliance with ILO Conventions Nos. 87 and 98 and that United States labour practices, specifically the conduct of this case, are in compliance with ILO principles of freedom of association. The Government emphasises that its statements should not be construed as an endorsement or criticism of the actions of either party. Rather they address the adequacy of United States laws to protect employees' and union representatives' freedom of association and organisational rights.
2. 156. The Government breaks down the complaint in seven allegations, as follows:
   • - American labour laws and their enforcement do not adequately protect trade union and worker rights, including freedom of association and the right to organise;
   • - even when the NLRB has reasonable cause to find that organisational rights are being violated, the legal remedies prove to be ineffective;
   • - notices posted by Food Lion in settlement of complaints issued by the NLRB, in which Food Lion promised not to violate organisational rights, had no lasting effect in that they did not deter Food Lion from future violations of the law;
   • - by rejecting Local 400's charges concerning the incidents relating to the organisational activities of December 1988, the NLRB interpreted the NLRA in such a way as to deny freedom of association;
   • - even though the NLRB favoured associational rights in the case arising out of the 23 June 1989 organisational activities, the issuance of a complaint has not deterred Food Lion from its chronic disrespect for the law. Whenever organisers attempt to communicate with Food Lion employees, they are threatened with arrest, and the NLRB and federal courts have failed to stop this chronic practice;
   • - the review process in an unfair labour practice case often takes several years, with the result that justice can be frustrated; and
   • - section 10 of the NLRA, which provides for the issuance of injunctions in certain cases to prevent violations of the NLRA after a complaint has been issued, is blatantly unequal in that it authorises permissive injunctive relief against employers who are charged with violating the NLRA but makes injunctive relief mandatory in some instances when a union is charged with an NLRA violation.
3. 157. Concerning the first allegation, the Government states that American labour laws do adequately protect trade union and worker rights, including freedom of association and the right to organise. There are guarantees in the First Amendment of the Constitution of the United States, which states in relevant part that "Congress shall make no law ... abridging freedom of speech ... or the right of people peaceably to assemble ...". The First Amendment confers a right to seek membership in unions or other organisations concerned with business or economic causes. Moreover, NLRA contains several provisions to that end, namely sections 1, 7, 10 and subsection 8(A)(1).
4. 158. As the Freedom of Association Committee noted in Cases Nos. 1437 and 1467, the NLRA provides a series of procedural safeguards for the filing and hearing of unfair labour practice charges. In the present instance, as in the above-mentioned cases, the complainant continues to use those procedures, indicating that the system is "not entirely without the confidence of the workers' organisations involved" (262nd Report of the Freedom of Association Committee, para. 222). In the one case cited by UFCW that has been pursued to final resolution, a settlement was entered into that was favourable to UFCW. Therefore, the UFCW has failed to demonstrate that the United States has abridged any rights that fall within freedom of association or that United States labour laws do not protect the right to organise.
5. 159. As regards the second allegation, the Government contends that the legal remedies available under the NLRA are effective to redress violations of organisational rights. Section 10(C) empowers the NLRB, in cases where it concludes there is an unfair labour practice, to "issue and cause to be served on the person responsible an order requiring such person to cease and desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate the policies of the NLRA". Section 10(E) empowers the NLRB to petition a United States Court of Appeals for the enforcement of its orders relating to an unfair labour practice, and the enforcement may include appropriate temporary relief or restraining orders. In addition, under section 10(J), the NLRB is empowered to petition a United States district court for an injunction seeking temporary relief or a restraining order upon issuance of a complaint charging that a person has engaged in an unfair labour practice. Therefore, the NLRB has broad remedial authority to take such action as is necessary to effectuate the policies of the NLRA. The UFCW has failed to raise in this allegation any specific instance in which the remedies available under the NLRA have not been sufficient to redress violations of organisational rights.
6. 160. Regarding the third allegation, to the effect that the posting of notices (in which Food Lion promised not to violate organisational rights) did not deter the company from future violations of the law, the Government states that it is difficult to reply to, because it is expressed in very general terms and accompanied by few supporting facts. In particular, the UFCW does not claim that Food Lion violated any of the terms of the settlement concluded with respect to the store located in Culpepper (Virginia), for instance by interfering with any attempts the UFCW Local 400 may have made after the settlement to engage in informational handbilling and picketing at that store.
7. 161. The incidents mentioned by the UFCW regarding this allegation were found by the NLRB not to merit the issuance of a complaint. This may be tantamount to concluding that, in these instances, there was not probable cause to find that Food Lion violated the NLRA. Moreover, the earlier incidents that were the subject of the settlement involved substantially different kinds of activities and at different locations. Not only did the later incidents occur at different stores but they involved organisational activities rather than the informational activities that the UFCW engaged in during the earlier incidents. It cannot be expected that the remedy imposed as a result of the earlier incidents would necessarily provide a complete remedy for different kinds of later activities at different times and locations.
8. 162. In its fourth allegation, the UFCW argues that by refusing to issue complaints when union organisers were threatened with arrest for attempting to communicate with Food Lion employees in non-work areas in non-work time, the NLRB interpreted the NLRA in such a way as to deny freedom of association. The Government replies that, in refusing to issue complaints in these cases, the NLRB Regional Director found that the non-work areas to which the union representatives sought access were not public areas, and that the UFCW was attempting to exercise its organisational rights at the location where Food Lion's property right is strongest. The Regional Director also found that the UFCW failed to establish that the union representatives did not have alternative means of communicating with the employees. The finding was affirmed by the NLRB General Counsel's Office. In reaching its conclusion, the NLRB carefully considered UFCW's right and opportunity to engage in organisational activities as contemplated by Conventions Nos. 87 and 98.
9. 163. The UFCW then alleges that even though the NLRB favoured association rights by issuing a complaint concerning the 23 June 1989 incident in Fredericksburg (Virginia), this has not deterred Food Lion from its chronic disrespect for the law; the complainant further argues that the NLRB and the federal courts have failed to stop Food Lion's practice of threatening organisers with arrest when they attempt to communicate with Food Lion employees. The Government replies that this fifth allegation is accompanied by few supporting facts. For instance, the UFCW simply alleges that Food Lion engaged in the same unlawful behaviour at its Quiocassin store in Richmond, Virginia. Furthermore, the statement that UFCW organisers are habitually threatened with arrest also fails to indicate if the circumstances were similar in all cases and if charges were filed with the NLRB. The NLRB's remedial authority is broad, and can encompass an order covering all of an employer's facilities. However, the NLRB cannot be expected to consider and remedy unfair labour practices unless it is apprised of them by means of a filed charge.
10. 164. Contrary to the sixth allegation made by the UFCW, the review process in unfair labour practice cases proceeds in a timely manner and justice is seldom frustrated as a result of the process. The Government understands that it is a general principle of the right to organise that national legislation should provide for appeals procedures before the courts or independent tribunals: the laws of the United States provide such appeals procedures. One of the main goals of the United States judicial system is the expeditious adjudication of cases. Thus, appellate procedures require that appeals be made within a limited period of time or the right of appeal is deemed waived, with a few exceptions.
11. 165. In fiscal year 1988, the most recent year for which statistics are available, 31,453 unfair labour practice charges were filed with the NLRB (National Labor Relations Board, Fifty-Third Annual Report). Of these cases, more than 90 per cent were disposed of in a median of about 40 days, without formal litigation. For cases in which complaints were issued, the median time between the filing of charges and the issuance of a complaint was 46 days. Time periods for resolution of cases in which a complaint is issued vary greatly from case to case, depending upon the particular circumstances of the case, the complexity of the issues to be resolved, and the level to which the case is appealed. The vast majority of cases are resolved within a reasonable period of time. There are some exceptions: for example, as of October 1990, some 27 cases pending before the NLRB were more than two years old. However, such cases are exceptionally rare, and the NLRB has taken steps to modify its case-processing procedures to address even these rare cases. Without reference to a specific case in which the review process allegedly took too long, it is not possible to respond to the UFCW's allegation. It can only be reiterated that the goal of American law is to provide, in a manner consistent with the requirements of due process, an expeditious resolution of all cases.
12. 166. Finally, as regards the allegation that there is a blatant inequality in the NLRA inasmuch as it authorises permissive injunctive relief against employers, whereas the NLRB must seek such injunctive relief in certain instances against trade unions, the Government considers that a more complete and considered analysis of the context and purpose of those provisions discloses a reasoned basis for the rules and an effort by Congress to equalise the influence of each party.
13. 167. Under section 10(L) of the NLRA, where the NLRB concludes that there is reasonable cause to believe that a charge of unfair labour practice (under section (4)(A), (B) or (C), 8(b), 8(e) or 8(b)(7)) is true and that a complaint should issue, it is required to seek an injunction. These provisions concern secondary strikes and picketing, "hot cargo" agreements, and representational picketing. Thus, it appears that Congress has made mandatory temporary restraining orders and injunctions available only in those situations in which the allegedly unlawful acts could cause employers the greatest damage in the shortest period of time. This mandatory temporary relief seeks to prevent unlawful activity from accomplishing its purpose before administrative proceedings can be completed and making administrative remedies illusory. The UFCW's statement that "employers who suffer from union unfair labour practices are entitled to the mandatory injunctive provisions of the NLRA" is inaccurate. Mandatory injunctions under section 10(L) are only available for the very limited number of unfair labour practices that are specifically enumerated in section 10(L), i.e. unfair labour practices that are considered to be so inherently disruptive that, if not curtailed quickly, they could threaten the existence of a business, or even a segment of the economy, and cause irreparable damage to the detriment of both employers and employees. In the overwhelming majority of cases in which an unfair labour practice is asserted against a union, mandatory injunctive relief is not available. For example, in fiscal year 1988, 9,111 charges of unfair labour practices were filed against unions under section 8(b). Of these, only 52 (about 0.05 per cent) resulted in proceedings being filed seeking injunctive relief and only 14 injunctions (about 0.015 per cent) were actually granted (NLRB FY 88 Report, pp. 189, 245).
14. 168. By a communication dated 4 October 1991, the Government submitted its supplemental observations, including an addendum describing in detail the evolution of United States case law concerning trade unions' access to employees. In assessing the rights of non-employee union representatives to have access to employees on an employer's property, the NLRB accommodates the employees' rights, the employers' private property rights, and considers whether there is a reasonable alternative means of communication with the employees. The Government gives examples of rights protected by section 7 of the NLRA, such as forming or attempting to form a union among the employees of a company; joining a union whether the union is recognised by the employer or not; assisting a union to organise the employees of an employer; going out on strike to secure better working conditions; refraining from activity on behalf of a union. These rights are enforced principally by the NLRB and the General Counsel through more than 52 regional and field offices. The NLRB interprets the NLRA provisions using a case-by-case approach. Its case law is subject to review by the judicial system: Circuit Courts of Appeal and the Supreme Court. Individual cases often involve complex issues of law and fact. There is no fixed formula which immutably establishes the rights of the parties but rather an evolving body of case law derived from decisions of the Board, the Courts of Appeals and the Supreme Court.
15. 169. The evolution of case law concerning access by non-employee union organisers to employees on an employer's property (i.e. the main issue in the UFCW's complaints concerning the Fredericksburg incident) is described in detail in the addendum to the Government's supplemental observations. In summary, in order to define the extent of the right to communicate, the courts balance the rights of the employees under section 7 and the employer's property rights. Where there is both a legitimate property right and a legitimate section 7 right, alternative means of communication not involving intrusion on the property right must be considered in determining what access is required. Where there is no property interest, an employer cannot deny access. Where there are no reasonable alternative means of communication, the employer's property rights generally must yield to allow access. Even if there is a legitimate property interest and a reasonable alternative means of communication, denial of access to an employer's property may be unlawful if there is disparate treatment of union organisers and other similar activities. These various factors were applied in this case by the ALJ and the Board, with the result that Food Lion's denial of access to property adjacent to two Food Lion stores in Fredericksburg, Virginia, was found to have violated the NLRA.
16. 170. The Government argues that United States law therefore provides procedures for remedying violations of freedom of association rights, and that the procedures are both fair to all parties and effective. It explains in detail the structure of the NLRB, the procedure for processing representation and unfair labour practice cases, the remedies relating to freedom of association and the injunction provisions. This is an adversarial process that provides all parties an open forum, and gives them an opportunity to call witnesses, file evidence, present arguments and briefs, and, eventually, to request independent judicial review.
17. 171. The Government further submits that the UFCW has used, and continues to use, United States law and procedures to resolve its claims of infringement on freedom of association. It has prevailed on some claims and failed to establish other claims. However, the allegations made by UFCW utterly fail to show any systematic failure of United States law and procedures to protect freedom of association rights:
    • - a settlement was entered into concerning the Culpepper (Virginia) facility charges, in connection with the informational picketing and handbilling activities by UFCW. There is no evidence that Food Lion violated the terms of the settlement;
    • - the 14 unfair labour practice charges concerning various facilities in Virginia (alleged violations of section 8(A)(1) of NLRA) were dismissed by both the NLRB Regional Director and the NLRB General Counsel;
    • - the three charges filed in October 1989 concerning three facilities in Virginia were withdrawn by the UFCW in February 1990;
    • - the remaining two charges (concerning the Fredericksburg cases) were resolved in favour of the complainant, as explained in the following paragraph.
18. 172. The UFCW Local 400 filed charges against Food Lion in July and October 1989, alleging that it violated its rights under the NLRA at two Fredericksburg facilities (denying union representatives reasonable access to communicate with employees, threatening the arrest of union representatives, removing them from the employer's premises with the help of local police). Formal complaints were issued by the NLRB and consolidated in March 1990, and attempts to settle the issues were unsuccessful. Hearings were held before Administrative Law Judge (ALJ) Zenkel on 26 and 27 March and 2, 4 and 29 May 1990; post-hearing briefs were submitted in July 1990. Unfortunately, Judge Zenkel died before he could issue a decision; by consent, the case was transferred in November 1990 to ALJ Leiner, who issued his decision on 15 February 1991. Judge Leiner concluded that Food Lion had violated section 8(A)(1) of the NLRA; in his view Food Lion failed to establish that it had an exclusory property interest in the areas adjacent to its stores and therefore could not deny access to UFCW's representatives. In March 1991, Food Lion filed exceptions to the ALJ's decision and, on 27 August 1991, the NLRB affirmed Judge Leiner's decision, although on different grounds, holding that the employer's actions constituted "unlawful disparate treatment". The Board adopted Judge Leiner's order, as modified to reflect the discriminatory nature of the violations.
19. 173. Under the circumstances, the two-year period required to resolve this case was reasonable; there were several attempts to settle the case, five days of hearings were necessary and extensive briefs were filed by the parties. Neither the facts nor the law were clear; the parties were given an equal opportunity to present full argument and testimony, and each had the same opportunity to appeal if not satisfied with the decision of the ALJ or the Board. This case demonstrates the extent to which United States law and practice protects the rights of employees, employers and unions, both substantively and procedurally. It is a robust system which is unbiased, and is both designed and operated to resolve disputes promptly, effectively and fairly.
20. 174. Contrary to the allegation made by the UFCW in its additional observations, Food Lion has agreed to comply voluntarily with the NLRB's decision of 27 August 1991, and it was not necessary to use the enforcement procedure established by the NLRA. On 9 December 1991, Food Lion signed the following Notice to Employees as required by the Board's decision:
    • The National Labour Relations Board has found that we violated the National Labour Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights: To organize To form, join or assist any union To bargain collectively through representatives of their own choice To act together for mutual aid or protection To choose not to engage in any of these protected concerted activities.
    • WE WILL NOT discriminately prohibit representatives of UFCWU, Local 400, AFL-CIO from communicating with our employees on the sidewalks, roadways and parking lots in front of and surrounding our stores in the Breezewood and Chancellor Shopping Centers, located in Fredericksburg, Virginia, or threaten union representatives because of their presence on the sidewalks, roadways or adjacent parking areas for the purpose of communicating with our employees.
    • WE WILL NOT in any like or related manner interfere with, restrain or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.
21. 175. In addition, as required by the Board's order, Food Lion posted this notice at the Fredericksburg stores, where it would remain posted for 60 days, until early February 1992. Thus, Food Lion has now complied with the Board's decision. This case and its resolution demonstrate that United States labour laws and procedures safeguard the principles of freedom of association and the right to organise.
22. 176. As regards the alleged inequality in the injunction provisions of the NLRA, the Government points out that in the Fredericksburg case the UFCW did not request the NLRB to seek an injunction from a Federal District Court; it rather requested as a remedy "an order requiring Food Lion to cease and desist from prohibiting representatives of Local 400 from communicating with employees on the sidewalks outside its stores and affirmatively granting the union access to the sidewalks for the purpose of communicating with employees of Food Lion". That is substantially what the ALJ ordered. Similarly, in its 12 April 1991 brief to the Board, the UFCW sought affirmation by the Board of the ALJ's decision, and stated that "it is clear that the remedy imposed by Judge Leiner was correct and in complete conformity with similar orders ...". With the modification noted above to reflect the discriminatory nature of the violation, the Board affirmed the ALJ's order. Thus, UFCW has obtained the remedy it had sought and had indicated was "correct"; it has no basis for asserting the United States law and procedures are inadequate.
23. 177. Although the supposed "inequality" in availability of injunctive relief that is asserted by UFCW is not properly an issue in this case, the Government none the less reiterates that there are valid reasons for the distinctions made between "mandatory" and "permissive" injunctions. The "mandatory" injunctions that are available under section 10(L) of the NLRA are only available in a limited number of unfair labour practice cases, namely in cases of secondary strikes and picketing, "hot cargo" agreements and representational picketing. These cases involve damages to third party neutrals. The remedy is addressed to preventing irreparable damage to these neutral parties, and does not infringe on the balance between the interests of employers and of employees and their representatives.
24. 178. The fact that injunctions sought under section 10(L) of the NLRA are commonly called "mandatory" does not mean that they are automatically granted to a party who alleges a violation of sections 8(b)(4)(A), (B) or (C), or section 8(e) of the NLRA. "Mandatory" means only that a petition for an injunction must be filed with the United States district court on behalf of the Board if an NLRB Regional Director determines that there is reasonable cause to believe the charge is true. The injunction is issued only if reasonable cause can be established in proceedings before the district court, and the court determines that the remedy is just and proper.
25. 179. The purpose of the temporary injunction remedies contained in sections 10(J) and 10(L) is to preserve the Board's remedial power by affording limited interim relief in a dispute in order to maintain the status quo pending final adjudication by the Board. In articulating the justifications for sections 10(J) and 10(L), the United States Senate Report emphasised the long delays that may be required to obtain and enforce a Board order, and the need to eliminate obstructions to the free flow of commerce and encourage the practice and procedure of free and private collective bargaining. Congress provided that "the Board, acting in the public interest and not in vindication of purely private rights, may seek injunctive relief in the case of all types of unfair labor practices and that it shall also seek such relief in the case of strikes and boycotts defined as unfair labor practices". In enacting section 10(L), Congress was especially concerned about the injury to innocent individuals resulting from secondary boycotts.
26. 180. The Board seeks injunctive relief under section 10(J) in a variety of situations where employee rights are significantly threatened. It is sought in those cases where the "effect of the unfair labor practice was widespread, the public interest was seriously affected, the Board's processes were being interfered with, or the Board's ultimate remedy under the circumstances would have been clearly inadequate and the conduct was clear cut and flagrant". The limited availability reflects the United States Congress' intent to prevent irreparable injury to innocent individuals, employees and employers in those instances where the risk of such injury is greatest. However, in those instances where such irreparable damage to employees' rights is possible, the NLRB can, and does, seek injunctive relief under section 10(J).
27. 181. In its third supplementary observation (8 May 1992) the Government points out that the latest submissions of the UFCW raise no new relevant factual or legal issues. It however replies in some detail to these comments, relating them back to its own previous observations, summarised above. As regards the complainant's comments on the Lechmere case, the Government adds that this case did not involve Food Lion, nor did it have any bearing on any of the unfair labour practice charges filed by the UFCW against Food Lion.
28. 182. The Government concludes that the UFCW has neither demonstrated any systematic failure of United States law and procedures to protect these rights, nor has it demonstrated a reasonable basis for workers or labour organisations to lack confidence in the system. The only case that had not been resolved by the Board when UFCW's complaint was filed in March 1990 was decided in favour of UFCW by the Board in August 1991 and in December 1991 Food Lion complied voluntarily with the Board's order. This demonstrates that United States law and practice protect employees' rights of freedom of association. UFCW has taken full advantage of United States law and procedures in pursuing this case, and the case has proceeded expeditiously, given the issues and the need to assure due process to all parties. Contrary to UFCW's assertions, this case demonstrates that United States law and procedures are sufficient to protect employees' rights of freedom of association.
29. 183. The United States labour law and enforcement system has proved successful for over 50 years in providing fair, impartial, prompt and effective resolution of almost 1 million unfair labour practice cases. Over 30,000 such charges are resolved under United States law each year. The fact that UFCW is not satisfied with the resolution of all charges that it has filed in connection with its attempts to organise Food Lion employees in Virginia does not demonstrate any failure of the system.
30. 184. In its communication of 19 August 1991, the United States Council for International Business (USCIB) submits that the fact that the present complaint is the fourth recent case filed against the United States does not indicate that there is a problem with the system established to remedy anti-union tactics and unfair labour practices. In a country the size of the United States, over 20,000 unfair labour practices charges are filed each year against employers. The fact that four different unions for political reasons and/or as part of a corporate campaign have filed four complaints with the ILO out of the 80,000 such charges filed during the same period (0.0005 per cent of all charges) is not a basis for concluding that there are problems with the NLRB's procedures.
31. 185. All unfair labour practice charges mentioned in the present case have been resolved to date, i.e. either dismissed or upheld on the merits, withdrawn by the union or settled to the union's satisfaction. Therefore, there is no basis in the context of this case for concluding that remedies against unfair labour practices are ineffective. Although the filing of a charge with the NLRB does not mean that the employer had in fact engaged in an unfair labour practice, hundreds of employers are expeditiously found by the NLRB to have engaged in unfair labour practices each year and such lawbreakers are required to pay more than $34 million in backpay each year for these violations. More than 90 per cent of all such charges are disposed of in 40 days or less.
32. 186. Furthermore, because no injunction of any kind has been requested by either party or issued by the NLRB in this case, there is no basis for the Committee to make a judgement about the efficacy of sections 10(J) and 10(L) injunctions. Indeed, out of 9,111 unfair labour practice charges filed against unions in 1988, only 52 resulted in section 10(L) injunctions against the union, or 0.5 per cent of all charges filed against unions. These injunctions are for union practices such as union violence, that, if not curtailed quickly, could threaten the existence of a business or even a segment of the economy and cause irreparable damage to the detriment of both employers and employees. Under section 10(J), a union may seek an injunction against an employer if it thinks its right to freedom of association had been abridged. In 1988, 24 such injunctions were issued against employers by the NLRB.
33. 187. In its communication of 16 September 1991, the USCIB states that the decision and order issued by the NLRB on 27 August 1991 make it clear that, when there is a meritorious unfair labour practice claim supported by the facts, the Act's due process and remedial scheme works effectively. Accordingly, this case demonstrates the efficacy of the existing unfair labour practice and remedial regime under the NLRA. In these circumstances, there is no basis for a re-examination of the United States system of remedies for unfair labour practices. Such an examination would constitute labour law reform in the United States and upset the accepted balance of employer, union and employee rights that have existed in the United States since 1947.
34. 188. In its communication of 9 January 1992, the USCIB reiterates that the fact that Food Lion did comply with the NLRB's order demonstrates that the due process and remedial scheme established by the NLRA works effectively. The USCIB further argues that the genuineness of the complainant's claim that it is seeking to organise Food Lion's employees is open to question. Quoting from various documents (other litigation involving Food Lion and the UFCW; newspaper articles collected and published by the UFCW; a UFCW letter soliciting from employees wage-hour claims against Food Lion) the USCIB submits that the UFCW has never sought to exercise its right to organise Food Lion employees under United States law. This casts a substantial doubt as to the validity of its complaint before the Committee, which is, at best, an abuse of ILO processes.
35. 189. In its communication of 4 May 1992, the USCIB reiterates some of its previous arguments, summarised above, and makes a thorough legal analysis of Lechmere and of its significance for freedom of association and the right to organise under the United States law. It points out that this case does not involve Food Lion and does not raise the legal issue that was the source of the one meritorious unfair labour practice charge by the UFCW against the company. As regards substance, the decision in Lechmere is nothing more than a reaffirmation of a unanimous decision issued in 1956 by the Supreme Court (NLRB v. Babcock and Wilcox) from which the NLRB deviated recently. In any event, if the Lechmere precedent has any significance under United States labour law, it will take years before its true impact is known. The USCIB concludes that this case represents a misuse of the Committee's processes and procedures. None of the UFCW's fears in its first three submissions have been borne out. Indeed, the United States labour law system has been shown to be extremely effective in resolving unfair labour practice charges through investigation, conciliation, and decision and order on the merits.

C. The Committee's conclusions

1. 190. Before dealing with the substance of the complaint, the Committee would like to mention that the above description of the parties' positions represent only, despite its length, an attempt at summarising the some 150 pages of submissions, replies and counter-arguments, and 600 pages of supporting documents (NLRB documents and decisions, court cases, legal analysis, statistics, union literature, press clippings, etc.). Beyond the factual, legal and jurisprudential complexities of the case, the fact remains that the main allegation is that United States labour laws and practice do not protect adequately the right to organise since union organisers cannot really exercise their right of access to employees. The UFCW also submits that even where the NLRB has cause to find that organisational rights are violated, the existing legal remedies - in particular those concerning unfair labour practices - are ineffective in practice. It explains that its local affiliates have been prevented from organising employees in the retail food industry because of the unfair labour practices of Food Lion Corporation, which operates some 300 food stores in the United States. The complainant also submits that the NLRA creates a blatant inequality between employers and trade unions, since the latter only have the possibility of permissive injunctive relief after an unfair labour practice complaint has issued, whereas employers are entitled to the mandatory injunctive provisions of the NLRA.
2. 191. The Government replies that its labour legislation is generally in compliance with ILO Conventions Nos. 87 and 98 and that United States labour practices, specifically the conduct of this case, are in conformity with the ILO principles concerning freedom of association. In short, the Government contends that the disputes concerning the factual issues have been duly adjudicated, that the labour legislation does protect adequately the right to organise, and that the injunctive relief provisions of the NLRA do not discriminate against trade unions.
3. 192. As regards the various incidents relating to the organisational or picketing and handbilling activities of the local union, the Committee observes that the UFCW filed several charges of unfair labour practices against Food Lion, with varying degrees of success. Firstly, the charges concerning the UFCW's organising efforts in 14 stores throughout Virginia were dismissed by the NLRB Baltimore Regional Director and, on review, by the NLRB General Counsel, before whom both parties had full opportunity to present testimonies, evidence and arguments. Secondly, a settlement was concluded concerning the Culpepper facility, whereby Food Lion agreed to post a notice in the employee areas of the store, promising it would not violate their organisational rights; there is no evidence that this agreement was violated. Thirdly, the charges filed in October 1989 concerning three stores in Virginia were withdrawn by the UFCW in February 1990. Finally, the NLRB upheld in August 1991 the charges concerning the Fredericksburg case and, in December 1991, Food Lion agreed to comply voluntarily with its order by posting the notice in the two stores in question.
4. 193. As it has already noted in previous cases concerning the United States, the Committee notes that the NLRA does establish an elaborate system for the hearing and adjudication of unfair labour practices complaints before the NLRB, with possibilities of appeal by both sides, up to the Supreme Court in certain situations. As a specialised quasi-judicial national body, the NLRB issues binding decisions after hearing witnesses, considering evidence and arguments - frequently very complex due to the nature of unfair labour practices cases - weighing the respective interests of the parties and interpreting the domestic labour legislation and jurisprudence as applied to a given set of facts. Based on the evidence submitted, it appears that the majority of cases are processed expeditiously by the NLRB.
5. 194. The Committee believes that the relationship between Food Lion Corporation and the UFCW local was obviously an uneasy one. The complainant's organising efforts apparently met with a strong resistance from the employer right at the initial stage. In particular, the Committee notes that union representatives often could not even communicate with employees in spite of all efforts made by various means. In several instances, threats of arrest were made against union organisers, sometimes with police intervention to expel them. It appears from the documents submitted that many incidents led to the filing of several charges with the NLRB, and that the whole situation between the UFCW and Food Lion gave rise to a substantial amount of litigation. The Committee is in particular concerned by the threats of arrest made against union organisers and their expulsion from the premises where they had contacted Food Lion workers. Obviously, such intimidation and threats cannot but create a climate unfavorable to legitimate union activities, in particular those aimed at unionising workers. The Committee recalls that an unduly or excessively legalistic attitude and the development of harmonious labour relations are incompatible, and indeed conflict, with each other and that satisfactory labour relations depend primarily on the attitudes of the parties towards each other and on their mutual confidence (Digest of decisions and principles of the Freedom of Association Committee, 3rd edition, 1985, para. 624). The Committee requests the Government, when companies take action which violates trade union rights, to draw the attention of the companies concerned to its conclusions in this case, as well as to stress to all parties the need to develop harmonious labour relations on the basis of mutual confidence.
6. 195. The Committee requests the Government to guarantee access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers, in order to apprise them of the potential advantages of unionisation.
7. 196. As regards the second major aspect of the case, the complainant contends that the NLRA treats employers and trade unions unequally, which aggravates its lack of confidence in the system. The Government replies that the mandatory temporary reliefs provided for in section 10(L) seek to prevent irreparable damage to neutral third parties; they are available only where the allegedly unlawful acts could cause employers the greatest damage in the shortest period of time. Mandatory injunctions, states the Government, are only available for unions' unfair labour practices that are so inherently disruptive that, if not curtailed quickly, they could threaten the existence of a business and cause irreparable damage to the detriment of both employers and employees.
8. 197. The Committee fully appreciates that so-called "mandatory" injunctions are not automatically granted to an employer which alleges a violation of sections 8(b)(4)(A), (B) or (C) or section 8(e) of the NLRA (i.e. certain unfair labour practices committed by unions). It is bound to note, however, that the NLRB must request an injunction under section 10(L) if a Regional Director determines that there is reasonable cause to believe that the employer's charge is true, whereas the NLRB has power to (in other words, may) seek such injunctive relief, against an employer under section 10(J).
9. 198. As the Committee understands the Government's arguments, it is the disruptiveness of the activity and its potential impact on neutral third parties which warrant the existence of a "mandatory" - as opposed to permissive - relief. This reasoning is quite understandable but the Committee considers that the same rationale could be applied conversely, to justify the extension of "mandatory" injunctions against employers in certain cases (for instance those unfair labour practices that hinder the freedom of association of employees), to prevent the alleged unlawful acts from accomplishing their purpose before administrative proceedings are completed, thus making administrative remedies illusory. The Committee thus requests the Government to ensure that, within the context of the application of the NLRA, workers and employers will be treated on a fully equal basis, in particular with respect to unfair labour practices.

ANNEX

1. Extracts from the National Labor Relations Act
2. Section 1:
3. It is hereby declared to be the policy of the United States to eliminate
4. causes of certain substantial obstructions to the free flow of commerce and to
5. mitigate and eliminate these obstructions when they have occurred, by
6. encouraging the practice and procedure of collective bargaining and by
7. protecting the exercise of workers of full freedom of association,
8. self-organization, and designation of representatives of their own choosing,
9. for the purpose of negotiating the terms and conditions of their employment or
10. other mutual aid or protection.
11. Section 7:
12. Employees shall have the right to self-organization, to form, to join, or
13. assist labor organizations, to bargain collectively through representatives of
14. their own choosing, or to engage in other concerted activities for the purpose
15. of collective bargaining or other mutual aid or protection, and shall also
16. have the right to refrain from any or all such activities ...
17. Section 8:
18. (a)(1): It shall be an unfair labour practice for an employer ... to interfere
19. with, restrain or coerce employees in the exercise of the rights guaranteed in
20. section 7 ...
21. (b): It shall be an unfair labour practice for a labor organization or its
22. agents: ...
23. (4)(i) to engage in, or to induce or encourage any individual employed by any
24. person engaged in commerce or in an industry affecting commerce to engage in a
25. strike or a refusal in the course of his employment to use, manufacture,
26. process, transport, or otherwise handle or work on any goods, articles,
27. materials, or commodities or to perform any services; or (ii) to threaten,
28. coerce, or restrain any person engaged in commerce or in an industry affecting
29. commerce, where in either case an object thereof is:
30. (A) forcing or requiring any employer or self-employed person to join any
31. labor or employer organization or to enter into any agreement which is
32. prohibited by section 8(e);
33. (B) forcing or requiring any person to cease using, selling, handling,
34. transporting, or otherwise dealing in the products of any other producer,
35. processor or manufacturer, or to cease doing business with any other person,
36. or forcing or requiring any other employer to recognize or bargain with a
37. labor organization as the representative of his employees unless such labor
38. organization has been certified as the representative of such employees under
39. the provisions of section 9;
40. (C) forcing or requiring any employer to recognize or bargain with a
41. particular labor organization as the representative of his employees if
42. another labor organization has been certified as the representative of such
43. employees under the provisions of section 9;
44. ...
45. (7) to picket or cause to be picketed, or threaten to picket or cause to be
46. picketed, any employer where an object thereof is forcing or requiring an
47. employer to recognize or bargain with a labor organization as the
48. representative of his employees, or forcing or requiring the employees of an
49. employer to accept or select such labor organization as their collective
50. bargaining representative ...
51. Section 8(e): It shall be an unfair labor practice for any labor organization
52. and any employer to enter into any contract or agreement, express or implied,
53. whereby such employer ceases or refrains or agrees to cease or refrain from
54. handling, using, selling, transporting or otherwise dealing in any of the
55. products of any other employer, or to cease doing business with any other
56. person, and any contract or agreement entered into heretofore or hereafter
57. containing such an agreement shall be to such extent unenforceable and void
58. ...
59. Section 10:
60. (A) The Board is empowered ... to prevent any person from engaging in any
61. unfair labor practice (listed in section 8) affecting commerce ...
62. (B) Whenever it is charged that any person has engaged in or is engaging in
63. any such unfair labor practice, the Board, or any agent or agency designated
64. by the Board for such purposes, shall have power to issue and cause to be
65. served upon such person a complaint stating the charges in that respect ...
66. (J) The Board shall have power, upon issuance of a complaint as provided in
67. subsection (b) charging that any person has engaged in or is engaging in an
68. unfair labor practice, to petition any district court of the United States
69. (including the District Court of the United States for the District of
70. Columbia), within any district wherein the unfair labor practice in question
71. is alleged to have occurred or wherein such person resides or transacts
72. business, for appropriate temporary relief or restraining order. Upon the
73. filing of any such petition the court shall cause notice thereof to be served
74. upon such person, and thereupon shall have jurisdiction to grant to the Board
75. such temporary relief or restraining order as it deems just and proper ...
76. (L) Whenever it is charged that any person has engaged in an unfair labor
77. practice within the meaning of paragraph (4)(A), (B) or (C) of section 8(b),
78. or section 8(e) or section 8(b)(7), the preliminary investigation of such
79. charge shall be made forthwith and given priority over all other cases except
80. cases of like character in the office where it is filed or to which it is
81. referred. If, after such investigation, the officer or regional attorney to
82. whom the matter may be referred has reasonable cause to believe such charge is
83. true and that a complaint should issue, he shall, on behalf of the Board,
84. petition any district court of the United States ... for appropriate
85. injunctive relief pending the final adjudication of the Board with respect to
86. such matter ...
87. (emphasis added)