Observation (CEACR) - adoptée 2006, publiée 96ème session CIT (2007)

The Committee notes the report and attached documents received from the Government.

Punishment for participation in a strike

1. In observations addressed to the Government for several years, the Committee has noted that, under article 12, section 95-98.1, of the North Carolina General Statutes, strikes by public employees are declared illegal and against the public policy of the state. Under section 95-99, any violation of the provisions of article 12 is declared to be a class 1 misdemeanour. Under section 15A-1340.23, read together with section 15A-1340.11 of Chapter 15A (Criminal Procedure Act), a person convicted of a class 1 misdemeanour may be sentenced to “community punishment” and, upon a second conviction, to “active punishment”, that is, imprisonment. Article 3 (Labour of Prisoners), section 148-26, of Chapter 148 (State Prison System) declares it to be the public policy of the state of North Carolina that all able-bodied prison inmates shall be required to perform diligently all work assignments provided for them.

2. The Committee notes from its latest report the Government’s indication that North Carolina judges have the discretion to impose fines and/or community punishment in class 1 misdemeanour cases, and its repeated assertion that “fines – not community service – are imposed on most class 1 misdemeanour cases”. The Committee notes the Government’s further indication that it would be “hypothetically possible” for a North Carolina state employee to be arrested, tried, convicted and sentenced for engaging in an illegal strike under state law and, as a consequence, to “be subject to the state’s requirement that such prisoners work”. The Government repeats its view, however, that “North Carolina law and practice are consistent with the letter and the spirit” of the Convention, and that “no measures have been – or need to be – taken to change that state’s law”.

3. The Committee notes the “Compendium of Community Corrections Programs in North Carolina, Fiscal Year 2004-2005”, published in January 2006 by the North Carolina Sentencing and Policy Advisory Commission, which explains that the imposition of community punishment may include assignment to the state’s Community Service Work Program (CSWP). The report states: “The CSWP is an alternative to incarceration imposed as part of a community punishment or DWI sentence, or in some cases as the sole condition of unsupervised probation.” The report states elsewhere: “CSWP is a community punishment. It is also used as a sanctioning tool at every stage of the criminal justice system … CSWP requires the offender to work for free for public or non-profit agencies in an area that will benefit the greater community.” The Committee notes that programme data concerning the community corrections programme, for the reporting period FY 2004-05, indicate that 67,076 offenders had been admitted to the CSWP, and that offenders in the programme performed 1,593,736 hours of work with an estimated value of US$8,660,163. The Committee has recalled that under Article 1(d) of the Convention, ratifying States are obliged to abolish all penalties involving any form of compulsory labour that may be imposed as a punishment for having participated in strikes.

4. The Committee is therefore bound to observe that under North Carolina law, a sentence of community punishment that involves an obligation to perform work or services may, as an alternative to incarceration, be imposed on public employees for committing the misdemeanour offence of striking, and that as such the law and policy fall within the definition of compulsory labour under the Convention. The Committee is also compelled once again to point out that, in cases of “active punishment”, the circumstance of a public employee having prior convictions is irrelevant to consideration of a prison sentence, imposed on that person for the crime of participating in a strike, as falling within the scope of the Convention. Noting once again that the relevant provisions of North Carolina law do not appear to have been applied in practice to punish participation in strikes by state or local public employees, the Committee trusts that the Government will make every effort in the very near future to take the necessary measures to bring the state’s law into conformity with the Convention.

5. The Committee notes the further comments by the Government in its report, in response to the Committee’s previous request for further information and explanations regarding relevant state legislation, including legislation in the states of Michigan, Missouri and Nevada. The Committee is raising certain questions in this regard in a request addressed directly to the Government.