Informe definitivo - Informe núm. 254, Marzo 1988

1. 58. By a communication dated 25 June 1987 the United Industry Workers' Local 424 (UIW) presented a complaint of violations of trade union rights against the Government of the United States. It supplied further information in a letter dated 10 July 1987. The Government supplied its observations on this case in a communication dated 14 October 1987.
2. 59. 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. 60. In its communication of 25 June 1987, the UIW alleges a series of anti-union practices - ranging from withholding of wages and lengthy legal proceedings to the illegal dismissal of 200 UIW members - carried out on UN headquarters premises in New York in an effort by the concessionaire to deny freedom of association and, more particularly, to avoid collective bargaining.
2. 61. The UIW, an independent nationally recognised workers' organisation with over 2,000 members, claims that an agency of the executive branch of government of the United States has wilfully neglected laws designed to protect the rights of workers and selectively enforced laws regarding sovereign immunity. This pattern of conduct has caused the denial of timely certification of the validly elected union and the frustration of the legitimate efforts of workers to bargain collectively with their employer.
3. 62. The UIW outlines the circumstances surrounding its complaint as follows: on 17 October 1983, the UIW received a letter signed by "a group of desperate workers!", including the signatures of shop-stewards and workers employed at UN headquarters in New York, many of whom had worked on UN premises since 1946. The letter complained of wages improperly withheld, illegal firings and sexual harassment on the job by the employer, Canteen Corporation, the corporate food service caterer under contract with Commercial Management Services (CMS), an agency of the UN. The UN agency was apparently indifferent to these problems, and the employees had first turned to their then union - Hotel Employees and Restaurant Employees Local 100 (AFL-CIO) - for help. The UIW states that the workers decided to change their union and over 90 per cent of them signed UIW membership cards. On 13 November 1984 a petition was filed with the National Labor Relations Board (NLRB) for a union representation election.
4. 63. The UIW alleges that for six months the attorneys for Canteen Corporation stalled and blocked the NLRB from holding an election. Canteen Corporation claimed that while it had voluntarily recognised the AFL-CIO Local, the workers concerned did not have the right to vote for another union because the NLRB did not have jurisdiction in the UN. According to the UIW, it thus was choosing to ignore UN directives to the contrary. The UIW states that the employer used the time delay to coerce and threaten workers, telling them they would "lose everything" if they changed unions.
5. 64. On 12 April 1985 at the Hotel Tudor in New York City, states the complainant, the NLRB ordered and held, over the objections of Canteen Corporation, a representation election by secret ballot. Permission could not be obtained to hold the election on UN premises. The employer's attorneys, however, had the ballots impounded by appealing the decision to allow the election (in a "Request for Review") - originally made by a regional office of the NLRB - to the full NLRB in Washington DC. On 27 March 1986, 16 months after petitioning for a representation election and still with no decision on the outcome or the validity of the election, the UN suddenly terminated its contract with Canteen Corporation and the 200 workers involved were fired.
6. 65. The complainant states that the UN brought in a new caterer (Restaurant Associates Industries Inc.), which engaged a law firm having acquired the services of a recently retired senior NLRB official.
7. 66. On the same day as the dismissals the NLRB finally counted the ballots, but some challenges concerning the eligibility of voters were raised. The complainant states that on 30 June 1986 the NLRB rendered its decision regarding the challenged ballots, all of which were found in favour of the UIW. However, it was not until 22 August 1986 (i.e. 21 months after the UIW had filed its original petition) that the NLRB finally certified it as bargaining agent for Canteen Corporation's employees in the UN food service and retail concession units. According to the complainant, now that it was empowered to act on behalf of these employees, the UIW contacted the UN and the new caterer, as successor employer, so as to commence collective bargaining, but was refused any meeting.
8. 67. The UIW immediately filed unfair labour practice charges in the appropriate NLRB regional office against the UN agency Commercial Management Services (CMS) and against the new caterer, but these charges were mysteriously assigned to another region whose recently retired director now worked for the law firm representing Restaurant Associates Industries Inc., the new caterer. The UIW explains that, apparently, at the time it filed the charges, the NLRB had already decided that the new caterer was not a successor employer and that CMS was, by virtue of sovereign immunity, not within the jurisdiction of the NLRB, therefore neither was bound by the election. The UIW claims that this decision to reject its charges was arrived at either in ignorance of, or indifference to, the following facts: the UN had, on more than one occasion, conceded that labour disputes involving the food service and retail concession workers were under NLRB jurisdiction; and the UN through CMS had the final say over the conditions of employment of the food service and retail concession workers and had considerable control over the operations of Canteen Corporation and its successor, Restaurant Associates Industries Inc.
9. 68. The UIW therefore alleges that because it had been denied the opportunity to argue against this conspiracy to thwart the election results, it found itself in the incredible position of being the certified representative of 200 illegally dismissed workers with no one to whom it could appeal and no one with whom it could bargain.
10. 69. The complainant attaches several supporting documents to its complaint, two of which are letters from the NLRB (dated 31 July and 17 November 1986) rejecting the allegations of unfair labour practices lodged against the Commercial Management Services of the UN. In these letters the NLRB Regional Director states that the United Nations -
    • ... is exempted from the Board's jurisdiction under the Public International Organizations Act, which sets forth the privileges and immunities of the United Nations. You contend that the Headquarters Agreement between the United Nations and the United States in effect constitutes consent to the application of US law to the United Nations. I note, however, that the United Nations does not interpret the Headquarters Agreement in this manner and contests an assertion of jurisdiction by the NLRB in this case. Moreover the Agreement seems to refer to the application of US law to the premises of the United Nations but not to the application of such law over the United Nations as an entity. Thus in the absence of any clear consent by the United Nations to the jurisdiction of the National Labor Relations Board, I conclude that the Board is precluded from asserting jurisdiction over Commercial Management Services, a division of the United Nations.
11. 70. On the other hand, another attachment to the complaint is a letter addressed on 26 February 1985 to the UIW by the UN Assistant Secretary-General for General Services which states: As far as the United Nations is concerned, the question of representation of Canteen (Corporation's) employees by any particular labor union is a question to be resolved in accordance with the normal procedures of United States labor law, which law is applicable within the Headquarters district because it has not been excluded by any United Nations Regulation. However, no one, including officials of governmental agencies such as the NLRB, may have access to the Headquarters district without our consent.
12. 71. In its communication of 10 July 1987, the UIW attaches copies of its pleas for assistance addressed to various personalities and bodies, as well as an earlier collective agreement covering the UN food service and retail concession workers. The agreement, signed on 1 February 1980 for two years by the Hotel, Restaurant and Club Employees and Bartenders Union (AFL-CIO) and a Trusthouse Forte subsidiary, provided that the agreement would be transferred or assigned to any successor employer. The complainant also provides a copy of the updated renewal of Trusthouse Forte's agreement proposed by its successor, Canteen Corporation, and of the agreement itself, to be in force from 1 February 1982 to 31 January 1985. This second collective agreement contains the same provision concerning its transfer or assignment to any successor employer.

B. The Government's observations

1. 72. In its communication of 14 October 1987, the Government does not dispute the description of the facts in this case given by the complainant, but adds certain clarifications. For example, it supplies a copy of the March 1985 NLRB "Decision and Direction of Election" which was issued in favour of the UIW's petition for a representation election and which rejected Canteen Corporation's arguments on its lack of jurisdiction. It likewise supplies a copy of the NLRB's June 1986 "Order directing that certain ballots be counted" from which it emerges that the employer had withdrawn its "Request for Review" in February 1986.
2. 73. The Government also points out that the change of concessionaire had already been arranged in February 1986, and in early March Restaurant Associates Industries Inc. solicited employment applications from Canteen Corporation employees. Sixteen of them were offered positions with the new employer which also hired its own complement of employees. The Government explains that after the March changeover in employer, several former employees twice filed unfair labour practice charges with the NLRB alleging anti-union bias in the refusal to re-hire them and discriminatory termination of employment; these charges were found to be without merit, and on appeal, it was confirmed that that the dismissals were not unlawful and, in any event, CMS was exempted from judicial process by the federal Public International Organization Act of l945.
3. 74. As regards the specific allegation that the NLRB improperly refused to assert jurisdiction over CMS, the Government states that the NLRB's decision is fully supported by well-established United States labour law, including the Public International Organization Act (which provides that international organisations, such as the UN, are immune from every form of legal process as is enjoyed by foreign governments, except when the immunity is expressly waived by treaty or expressly limited by statute). Moreover, the Government denies that the UN letter of 26 February l985 referred to by the complainant amounts to a waiver of immunity. To support this, the Government supplies a copy of a July l986 letter from the UN Legal Counsel to the NLRB which stresses that CMS, being a unit of of the UN secretariat and the UN being exempt from every form of legal process by virtue of the l945 Act, the UN Charter and the Convention on Privileges and Immunities of the UN (to which treaties the United States is a party), cannot be made subject to NLRB proceedings. The Government adds that there is no express waiver to or limit on the UN's immunity to suit, and that nothing in Conventions Nos. 87 or 98 limits the NLRB's discretion to assert or decline jurisdiction.
4. 75. As regards the NLRB's rejection of the unfair labour practice charges, the Government points out that they were fully investigated in an impartial manner with the parties' procedural rights being fully protected. The Regional Director's determinations were appealed to the General Counsel of the NLRB who confirmed that, on the facts, there was insufficient evidence that the new employer or CMS had violated the National Labor Relations Act.
5. 76. The Government denies that there was a deliberate tardy handling of the UIW's representation case. It states that, once the UIW's position was filed, the usual administrative process of investigation and hearings went ahead with the procedural rights of all parties being protected. According to the Government, it is not necessarily incompatible with Convention No. 87 for legislation to provide for certification of the most representative union in a given unit when certain safeguards are provided; such safeguards in this case included: a review of the decision to hold the election; secret ballot during the election; a delay in counting the ballots and impounding of the ballots upon the employer's challenge. After the challenge had been settled the NLRB certified UIW as the exclusive bargaining representative of Canteen Corporation's employees at certain UN restaurants, cafeterias and kiosks.
6. 77. According to the Government, given the number of procedural steps involved and the complexity of the issues raised, the time taken for the NLRB to certify UIW was not unreasonable. More importantly, it states, the rights of the workers to freely elect their collective bargaining agent, as guaranteed by Convention No. 98, were fully protected in this case.
7. 78. As regards the allegation that the NLRB's rejection of Restaurant Associates Industries Inc. as the successor to Canteen Corporation denied the collective bargaining rights of the workers involved, the Government emphasises that Canteen Corporation's contract with the UN terminated at the end of March l986. Thus the August l986 representation certification only covered those former Canteen Corporation employees who stayed on under the new caterer. The Government explains that under United States labour law a new employer is a successor employer only when the bargaining unit remains unchanged (the new employer having hired a majority of the employees in question) and would then be required to recognise a recently certified bargaining agent of these employees. The NLRB therefore correctly concluded that there was no violation of the National Labor Relations Act when Restaurant Associates Industries Inc. refused to bargain with the UIW.
8. 79. As regards the complainant's statement that its charges were "mysteriously assigned" to another NLRB regional office for investigation, the Government states that the NLRB official investigating the matter was temporarily assigned from region 29 (Brooklyn) to region 2 (New York City) only during the currency of the UIW's case. Such reassignments, being inter-office matters, are at the discretion of regional directors. According to the Government this transfer did not affect the investigation of the charges or the procedural rights of the parties.

C. The Committee's conclusions

1. 80. The Committee would first observe that, although the workers involved in this case happened to work on United Nations premises, they are not UN employees. They were employed by a private catering company which won a concessionaire contract to supply food and catering services at UN headquarters. In addition, the UN Assistant Secretary-General for General Services, in a letter of 26 February 1985, clearly stated that the national legislation governed the employment of the workers concerned.
2. 81. To turn to the substance of the case, the Committee notes that two main sets of violations of freedom of association are alleged: (1) that the NLRB did not handle the UIW's petition for certification and its charges of unfair labour practices in an expeditious and fair manner; and (2) that the present employer - a private company - of staff in UN restaurants, cafeterias and kiosks is refusing to bargain with the UIW.
3. 82. On the first issue the Committee notes that it indeed took 21 months (from 13 November l984 to 22 August 1986) for the complainant union to achieve certification as the exclusive bargaining agent for certain workers on UN premises. At the same time it does not consider this to be an unreasonable period given the fact that, over these months, the NLRB had to deal with several not unusual procedural questions which the employer was entitled to raise under the legislation (e.g. requests for review, challenge of ballots). The Committee recognises that each procedural move by the employer was handled with respect for due process. It also notes that the UIW appears to have won on all the early procedural points concerning the certification election. Moreover, the Committee notes from the Government's reply that between the March l986 changeover in employer and the August l986 certification, it was the former employees - rather than the employer - who were continually using NLRB procedures.
4. 83. The Committee also observes that the complainant's suggestions of improper treatment of its unfair labour practices charges are not supported by evidence. The Government clearly explains that it was the NLRB investigating official who was transferred in this case and not the UIW's case. It also emerges from the facts that the NLRB correctly dismissed the charges laid against the UN agency which, in any case, is not the employer of the workers in question. The Committee accordingly decides that this aspect of the case does not involve violations of freedom of association.
5. 84. As for the NLRB's rejection of Restaurant Associates Industries Inc. as successor employer and its decision that this new caterer was not obligated to bargain with the UIW, the Committee observes that the UIW was duly certified as bargaining agent for the 200 or so Canteen Corporation employees of whom only 16 were re-employed by the new caterer. According to the national legislation in question, the UIW has no right to force the new caterer to bargain with it in respect of its present employees since the composition of the bargaining unit has changed. The ILO supervisory bodies' position on the recognition of trade unions for collective bargaining purposes has always been that, where systems provide for the most representative trade union to have preferential or exclusive bargaining rights, it is important that the determination of the union in question should be based on objective and pre-established criteria so as to avoid any opportunity for partiality or abuse (see General Survey on Freedom of Association and Collective Bargaining, ILC, 69th Session, l983, Report III (Part 4B), para. 295). Moreover, the Committee on Freedom of Association has stressed the importance of the principle that employers should recognise, for the purposes of collective bargaining, the organisations which are representative of the workers they employ (See 207th Report, Case No. 886 (Canada), para. 97).
6. 85. In the present case, the Committee is bound to note that the UIW now only represents a small minority of the workers employed by the new caterer and that, accordingly, there was no violation of the above principles when the employer refused to meet with it. The Committee would observe, however, that it no doubt remains open to the UIW to campaign and petition for coverage of the other food service workers on UN premises if it so wishes.