Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 343, Novembre 2006

705. The complaint is contained in a communication from the American Federation of Government Employees (AFGE), AFL-CIO, dated 14 August 2003. Public Services International (PSI) associated itself with the complaint in a communication dated 20 August 2003. By a communication dated 1 May 2006, the complainants withdrew a number of elements contained in their original complaint.

1. 706. The Government sent its reply in communications dated 23 December 2004 and 4 August 2006.
2. 707. The United States has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), nor the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), nor the Labour Relations (Public Service) Convention, 1978 (No. 151).

A. The complainants’ allegations

1. 708. The American Federation of Government Employees, American Federation of Labor, Congress of Industrial Organizations (AFGE, AFL-CIO, hereinafter AFGE), is North America’s largest federal employee union, representing 600,000 workers in the federal government and the Government of the District of Columbia. AFGE alleges serious violations of the right to bargain collectively by the Government of the United States, and in particular by the current administration.
2. 709. American federal law provides working persons in the United States the right to join, or refuse to join, a labour union. The United States Supreme Court upheld this right in 1937 when it stated that labour unions are essential for curbing the abuses of workers by their employers. Almost 25 years later, President Kennedy signed an executive order in January 1962, granting federal employees these same rights. Both Presidents Nixon and Carter also signed executive orders or civil service laws that strengthened these rights.
3. 710. Although collective bargaining has been available to federal employees since 1962, Congress did not enact the Federal Service Labor-Management Relations Statute (FSLMRS), as part of the Civil Service Reform Act, until 1978. This was the first comprehensive legislation governing labour relations between federal civil employees and their managers. The FSLMRS itself manifests some of the principles of the ILO instruments on freedom of association and collective bargaining, but restricts at the federal level the scope of collective bargaining by excluding wages and other monetary issues and by providing for the excessive protection of management rights. The complainant adds that the legislation affirmatively exempts from the coverage of its provisions certain federal agencies engaged in national security work and personnel or labour relations functions, as well as management officials, supervisory personnel, and confidential employees. The FSLMRS also authorizes the President, under certain conditions, to issue an order excluding otherwise covered federal agencies or subdivisions from FSLMRS rights “if the President determines that: (A) the agency or subdivision has as a primary function intelligence, counter-intelligence, investigative, or national security work, and (B) the provisions of this chapter cannot be applied to the agency or subdivision in a manner consistent with national security requirements and considerations” (5 USCA §7103(b)(1)).
4. 711. The 5 USCA §7103(b) specifically authorizes the President to exclude certain agencies and agency subdivisions from labour relations under the FSLMRS on the basis that he alone has determined the unit to have intelligence, counter-intelligence, investigative, or national security work as a primary function. Although the FSLMRS, on its face, may be consistent in many respects with Article 1 of Convention No. 151, which states that “the extent to which the guarantees provided for in this Convention shall apply to high-level employees whose functions are normally considered as policy making or managerial or to employees whose duties are of a highly confidential nature shall be determined by national laws or regulations”, the repeated application of §7103 has resulted in the exclusions by executive fiat of hundreds of thousands of federal employees from the rights of the FSLMRS and from the rights of Conventions Nos. 87, 98, and 151. In summarily denying such employees these rights, current American law dictates that it is not even necessary for US Presidents to include in an executive order specific findings concerning the mission of an excluded agency and the inability of that agency to fulfil its mission under the constraints of the FSLMRS.
5. 712. The AFGE contends that for several years, US government presidential orders issued under the authority of the FSLMRS have inappropriately denied federal government employees not directly engaged in the administration of the State the right to union representation and collective bargaining by simply invoking the “national security” provision of the FSLMRS.
6. 713. For a historical perspective on the violations of collective bargaining in the public sector through executive order, the AFGE first refers to President Jimmy Carter’s issuance of the first executive order to suspend a federal agency from the collective bargaining process. Executive Order No. 12171 was used to remove thousands of employees of the Library of Congress, Department of Treasury, Department of Justice, and Department of Energy, among other agencies, from coverage of the federal labour relations programme. Shortly thereafter, President Ronald Reagan proceeded to promulgate a number of executive orders to further exclude otherwise eligible agencies and subdivisions from coverage under the FSLMRS. For example, in 1986 President Reagan signed Executive Order No. 12559, which excluded subdivisions of the United States Marshals Service from coverage and protection under the FSLMRS. The AFGE challenged the legality of this executive order, asserting that federal marshals are not engaged in protection of the national security and therefore should not be excluded from collective bargaining by power of the §7103(b) Executive Order. For different reasons, the United States district court voided the Order. However, a higher court upheld a revised Executive Order 12559, issued less than one year later and registered as Executive Order No. 12632, on the grounds that “[s]ection 7103(b)(1) makes clear that the President may exclude any agency from the Act’s coverage whenever he ‘determines’ that the conditions statutorily specified exist”. Since issuance of the 1986 order, the US Marshals Service has abrogated the collective bargaining agreement affecting deputy marshals, and denied deputy marshal rights under the FSLMRS, thereby depriving thousands of employees the basic rights mandated by ILO standards.
7. 714. President George Bush, Sr. and President Bill Clinton also violated the principles set forth in Conventions Nos. 87, 98 and 151 when they excluded the Mapping Agency Reston Center and the Naval Special Warfare Development Group from collective bargaining, respectively. These agencies of the federal Government were suspended from the Federal Labor-Management Relations Program for reasons of national security without judicial challenge in the face of the Reagan court’s holding that such presidential actions are entitled to a presumption of regularity and are thereby essentially not reviewable by American courts. The accepted policy of US Presidents unilaterally removing otherwise eligible federal employees from labour protections by virtue of executive order has existed for five administrations and, at this point, can only be properly addressed at an international level.
8. 715. The current administration has continued the trend of “infringement and interference in the right to bargain collectively” undertaken by predecessor administrations. However, the current actions have effectuated a more encompassing prohibition of collective bargaining and freedom of association under the guise of government structural adjustment and in the name of national security where US courts generally do not have jurisdiction to challenge such actions.
9. 716. The federal public sector has appeared to be the direct target of the Government’s increasingly anti-collective bargaining policies of the past two years. For example, last year the Bush Administration took away collective bargaining rights from approximately 1,000 federal employees in the US Attorneys’ offices – rights these employees had exercised for almost three decades – in the name of national security (Executive Order No. 13252 (attached to the complaint)). The administration then pushed for legislation to eliminate the collective bargaining rights for the 170,000 federal employees in the new Department of Homeland Security – again in the name of national security. The Bush Administration has further refused to provide about 56,000 federal airport screeners in the newly created Transportation Security Administration (TSA) with civil service rights and employee benefits including workers’ compensation, (veterans’ preference, equal employment opportunity rights, and the right to union representation). Only 20 days after the TSA decision, the current Administration terminated the collective bargaining rights of over 2,000 cartographers, digital imaging specialists, secretaries and security guards in the National Imagery and Mapping Agency (NIMA).
10. 717. While the AFGE understands that the national security of the United States is critically important, it submits that equally important is the protection of the rights of the federal employees who are ultimately responsible for assuring national security, for as the FSLMRS recognizes, “experience in both public and private employment indicates that the statutory protection of the right of employees to organize, bargain collectively, and participate through labour organizations … in decisions which affect them – safeguards the public interest”. As discussed in detail below, AFGE contends that repeated actions by the Government in the past two years, including legislation enacted by the Congress, executive orders of the President and orders issued by government agency directors violate Conventions Nos. 87, 98, and 151. The AFGE therefore urges the Committee to address what appears to be an ever-growing and increasingly methodical effort to undermine federal employee collective bargaining rights and federal employee labour unions in the name of American national security.
11. Transportation Security Administration (TSA)
12. 718. Federal baggage screeners are the first line of defence guarding US commercial airlines, and maintaining a stable and focused workforce of screeners is essential to protecting airline employees and passengers. However, the current workforce can hardly be called either stable or focused. According to the Transportation Department, screener turnover has been between 30 and 35 per cent at airports where the TSA has assumed staffing responsibilities. Screeners from around the country have complained of delayed pay checks, unpaid overtime and training hours, unpredictable and constantly changing work schedules, and sexual harassment. As a result, workers from New York City’s La Guardia Airport, Baltimore-Washington International Airport, Pittsburgh International Airport, Chicago’s Midway Airport and ten other airports nationwide filed petitions with the Federal Labor Relations Authority (FLRA), requesting that an election be held to determine whether the workers can be represented by the AFGE.
13. 719. Amidst this backdrop, TSA decided to prohibit 56,000 federal baggage screeners from unionizing on 8 January 2003. TSA’s administrator, James M. Loy issued an order (attached to the complaint), which states in pertinent part:
14. By virtue of the authority vested in the Under-Secretary of Transportation for Security in section 111(d) of the Aviation and Transportation Act, Pub. Law No. 107-71, 49 USACA §44935 Note (2001), I hereby determine that individuals carrying out the security screening function under §44901 of Title 49, United States Code, in light of their critical national security responsibilities, shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization.
15. 720. In response, the AFGE originally filed suit in the US District Court for the District of Columbia on 10 January 2003 charging that the TSA administrator did not have the authority under the Aviation and Transportation Security Act to prohibit screeners from organizing.
16. 721. On 7 July 2003, the Boston Regional Director of the FLRA issued a decision dismissing the AFGE petitions on the ground that the FLRA lacked jurisdiction. According to the FLRA, the undersecretary of the agency has sole and exclusive discretion to determine conditions of employment of security screening personnel and thus acted with requisite authority to exempt the agency from any obligation to bargain collectively with a labour organization under 5 USCA §§7101 et seq.
17. National Imagery and Mapping Agency (NIMA)
18. 722. On 28 January 2003, the Bush Administration terminated the collective bargaining rights of over 2,000 cartographers, digital imaging specialist, data management specialists – and a significant number of secretaries and security guards – at the National Imagery and Mapping Agency (NIMA). These employees had been represented by AFGE and other unions for decades.
19. 723. The decision by the director of NIMA, James Clapper, to immediately terminate the collective bargaining rights of NIMA’s workers, was challenged by AFGE before the FLRA. In a decision dated 18 June 2003, the Denver regional director of the FLRA dismissed the consolidated cases for lack of jurisdiction, finding that the director’s determination was not reviewable by the FLRA under 10 USCA §461(c). (Under the 1996 law that created NIMA from eight defence and intelligence agencies, the NIMA employees are entitled to collective bargaining rights unless the director determines that the employees’ responsibilities have been modified to include intelligence, counter-intelligence, investigative, or security duties not previously assigned, and the performance of the newly assigned duties directly affect national security). It is notable that 10 USCA §461(c) prohibits review of the NIMA director’s determination to end collective bargaining rights by any US court, as well as by the FLRA.
20. Department of Justice (DOJ)
21. 724. Invoking national security concerns, on 7 January 2002, President George W. Bush issued an executive order under 5 USCA §7103(b) barring union representation for thousands of employees in five US Justice Department offices. The directive, Executive Order No. 13252, excludes employees at the Criminal Division, the National Central Bureau of Interpol, the National Drug Intelligence Center, the Office of Intelligence Policy and Review, and the 93 US Attorneys’ offices across the country from coverage by the FSLMRS. Nine units and over 900 employees previously represented by unions for many years were affected in the US Attorneys’ offices.
22. 725. The AFGE then refers to an article in The New York Times on 16 January 2002, reporting that White House officials said President Bush had issued the executive order to prevent union contracts from restricting, through strikes or other means, “the ability of workers in the justice Department to protect Americans and national security”. According to Anne Womack, a White House spokeswoman, the order “recognizes that a unionized workforce is not always appropriate for certain agencies or subdivisions of government, including employees who engage in investigation, intelligence, counter-intelligence or national security”.
23. Department of Defense (DoD)
24. 726. According to the AFGE, the Government is preparing to introduce legislation that eliminates collective bargaining rights in the Department of Defense, which is by far the largest federal civilian agency. At issue is legislation entitled the Civil Service and National Security Personnel System Act that would place almost 700,000 civilian Department of Defense employees under a completely new personnel system, potentially without collective bargaining and union representation rights. This legislation was inserted into the 2004 House Defense Authorization Bill that passed the US House of Representatives on 22 May 2003.
25. Department of Homeland Security (DHS)
26. 727. According to the AFGE, when President George W. Bush decided to support the establishment of a Department of Homeland Security (DHS) on 25 November 2002, the agenda to silence federal employee unions had been set. In the past year, “flexibility” has meant the authority to deny federal employees collective bargaining and union representation, the authority to allow management to design and implement new pay systems unilaterally, the authority to allow managers unilateral authority to design new systems for classification, performance appraisals and hiring, and finally, the authority to deny employees the right to appeal adverse action to the Merit Systems Protection Board (MSPB).
27. 728. At the time the Department of Homeland Security Bill was signed into law, it was composed of 22 federal agencies and over 170,000 employees, 30,000 of whom were represented by AFGE. Most of these employees have been working for the Immigration and Naturalization Service (INS) as border patrol agents, immigration inspectors, special agents, detention officers and detention and deportation officers. In addition, a smaller number of employees in other agencies who are represented by the AFGE will also become part of the new Department.
28. 729. Under the new law, the transition to creating a new Department is to be carried out by 24 January 2004. In setting up the new system, the Department is required to provide employee representatives with advance notice of the new rules and the reasons that they are being proposed, and to allow them 30 days to respond to those changes. The Department is then required to engage in a 30-day mediation process with five employee representatives that it selects, but is free to unilaterally impose its personnel system at the end of that time. In other words, the Department can unilaterally implement a new personnel system with no meaningful input from the employees or their representatives. The chances of a fair system emerging from that process are remote at best. The new law creates a process to allow employee collaboration in the development of the new system, but leaves the Secretary of the DHS with the final authority to impose changes over objections from unions or other employee representatives.
29. 730. One of the most contentious issues in the congressional debate on the creation of the DHS related to the authority of the President to deny collective bargaining rights to employees, subdivisions and agencies engaged in national security work. At the time of filing the complaint, the AFGE states that the possibility of President Bush exercising his authority to exclude all or parts of the DHS from collective bargaining is unknown. If it does happen, the President is required to notify Congress ten days in advance of the effective date. Even if the administration opts not to use its authority to exclude unions from the new department based on national security considerations, it could eviscerate the union’s effectiveness by establishing a personnel plan that effectively eliminates collective bargaining rights and civil service protection. Both of those matters are among the areas subject to change as part of the Administration’s new personnel plan.
30. 731. Under such a system, unions would be powerless to influence the working conditions of employees or to correct the wrongs suffered by employees. Overall it is clear that the Administration has a wide range of tools available to deny employees collective bargaining rights and civil service protections as required under international labour standards.
31. 732. The complainant refers to a previous case examined by the Committee concerning the denial of the right to freedom of association by a government in the name of national security (Case No. 1261, the United Kingdom) and contends that this case has a similar posture.
32. 733. In conclusion, the complainant contends that the right of government employees to be represented by a union and engage in collective bargaining has never been proven to be a national security risk. Under current American law, the United States Government has the authority to act quickly if necessary in case of such a risk. Thus, 5 USCA §7532 authorizes the head of any agency to immediately suspend and remove a federal employee without pay when he or she poses a national security threat. US Presidents do not use this provision often, not because it is not effective but because there have been very few cases where its use was warranted. As with other nations, it is clear that federal employees are professionals who take their jobs of public service very seriously.
33. 734. To deny a group of citizens – in this case, citizens in service to the American Government and the pursuit of justice – a fundamental human freedom is a serious action that should only be taken under the most extreme circumstances. Therefore, it is for all of the reasons stated above that the AFGE urges the Committee to request the government to take action to reverse recent US Government decisions regarding the Department of Homeland Security, NIMA, and TSA, and withdraw executive orders that exclude otherwise eligible employees from coverage under the FSLMRS.
34. 735. In its communication dated 1 May 2006, the AFGE indicates its desire to withdraw its complaint except with respect to the employees of the TSA. The AFGE indicates that, along with several unions that represent federal sector workers, it had challenged the legality of the new DHS and DoD labour relations regimes in two separate proceedings in the US District Court for the District of Columbia. The AFGE declares that both courts have now ruled that the Government’s proposed systems violate the collective bargaining rights of all employees covered by those systems under the Homeland Security Act (HSA) or the National Defense Authorization Act, regardless of their specific duties, and have enjoined the implementation of this labour relations regime. (The complainant refers specifically to the following two cases: D.C. National Treasury Employees Union v. Chertoff, 385 F. Supp. 2d 1 (D.D.C. 2005), app. pending, No. 05-5436 (D.C. Cir.); AFGE v. Rumsfeld, 2006 U.S. LEXIS 7068 (D.D.C. 2006).
35. 736. The complainant explains that, although TSA screeners are employees of the DHS, the labour relations regulations at issue in the Chertoff case do not cover them. Those regulations, promulgated by the HSA, explicitly exclude employees of the TSA (5 C.F.R. §9701.505(b)(6)). In addition, the complainant recalls that screeners have extremely limited rights of association and no collective bargaining rights whatsoever by virtue of an order issued by the Administrator of the TSA that was not within the scope of the challenge in Chertoff. That order states, in relevant part:
36. Individuals carrying out the security screening function under section 44901 of Title 49, United States Code, in light of their critical national security responsibilities, shall not, as a term or condition of their employment, be entitled to engage in collective bargaining or be represented for the purpose of engaging in such bargaining by any representative or organization.
37. 737. According to the complainants, these employees remain, to date, without the fundamental rights of association or bargaining guaranteed to them by the Declaration on Fundamental Principles and Rights at Work and by Conventions Nos. 87 and 98. The AFGE therefore expresses its intent to pursue its complaint with respect to these employees.
38. B. The Government’s reply
39. 738. In a communication dated 23 December 2004, the Government first summarizes the allegations made by the American Federation of Government Employees (AFGE), AFL-CIO and highlights that the AFGE more specifically alleges that a number of executive orders issued by several administrations dating back to 1979 have excluded “hundreds of thousands of federal employees” from the collective bargaining provisions of the Federal Service Labor-Management Relations Statute (FSLMRS) by “executive fiat” and in so doing have established a pattern of “denying and/or undermining” these employees’ fundamental right to organize and bargain collectively. The AFGE further contends that the new personnel systems being developed at the Department of Defense (DoD) and the Department of Homeland Security (DHS) will deny federal employees employed in those agencies collective bargaining and effective union representation. As indicated below, neither of these allegations has merit.
40. 739. The Government recalls that it has not ratified Conventions Nos. 87, 98, or 151 and therefore has no international law obligations pursuant to these instruments and no obligation to give effect to their provisions in US law. Nonetheless, the US Government has on numerous occasions demonstrated that its labour law and practice are in general conformity with ILO Conventions concerning freedom of association, and the ILO supervisory bodies have generally upheld this view.
41. 740. As always, the Government accepts the mandate of the Committee to examine complaints filed against it. However, inasmuch as the United States has not undertaken the international legal obligations of the specific Conventions mentioned in the complaint filed by the AFGE, the standard by which the United States should be judged in this case is that of the general, commonly accepted principles of freedom of association as they are reflected in the ILO Constitution and the ILO Declaration on Fundamental Principles and Rights at Work. This is particularly significant in regard to Convention No. 151, with which the AFGE alleges that the Government is not in compliance, but which is not one of the fundamental Conventions that give expression to the principles the Committee was established to promote. Further, Convention No. 151 has not achieved the same level of international acceptance as Conventions Nos. 87 and 98, as evidenced, inter alia, by its low rate of ratification to date. The Government considers that these distinctions are important in all cases before the Committee in which the country concerned has not ratified the fundamental Conventions relating to freedom of association or the specific Convention relating to freedom of association referenced in the complaint; otherwise according to the Government the act of ratifying an ILO Convention on freedom of association would have no legal or practical significance.
42. 741. The Government then refers to an earlier case examined by the Committee relating to public sector workers in the United States, including federal government employees (Case No. 1557) and the Government’s observations, which provided a detailed overview of the history and structure of collective bargaining in the federal Government that may prove useful in the present case.
43. 742. The present case is significant because it concerns modifications in federal sector collective bargaining on grounds of national security. United States law permits restriction of the rights to federal employees to engage in collective bargaining when those employees’ duties affect national security. The AFGE’s complaint challenges the recent exclusions of several subdivisions of agencies from the FSLMRS by executive order, and those by administrative determination in the case of the Transportation Security Administration (TSA) and the National Geospatial-Intelligence Agency (NGA), as well as the recent authority granted to DHS and DoD by federal legislation to modify their personnel systems. These measures were a direct response to the new and greater threats to citizens and residents of the United States since the devastating terrorist attacks of 11 September 2001, and are being taken to ensure that the agencies responsible for national security can react immediately and effectively, as circumstances require. These measures were narrowly drawn and linked to national security needs. In implementing these measures, the United States is striking a balance between the security of the State and the rights of public sector employees.
44. 743. The Government expects that its reply will demonstrate that: (1) the limited exclusions of special groups of employees performing work related to national security from the coverage of the FSLMRS are consistent with ILO principles of freedom of association and collective bargaining; and (2) the authority to modify the personnel systems at DoD and DHS explicitly provides the right of the employees of those agencies to organize and bargain collectively and provides a framework for employee participation in the design and implementation of any modifications to those personnel systems.
45. The limited exclusion of employees
46. from coverage under the FSLMRS
47. Executive orders pursuant to §7103(b)(1)
48. 744. The AFGE asserts that eight executive orders issued under §7103(b)(l) of the FSLMRS, which allows the exclusion of subdivisions of agencies from the coverage of that statute based upon considerations of national security, violate ILO principles relating to freedom of association and collective bargaining. The FSLMRS, codified in Chapter 71 of Title 5 of the US Code, governs labour relations between federal agencies and their employees, and provides for the right to “form, join, or assist any labour organization” and to engage in collective bargaining with respect to conditions of employment through representatives chosen by employees ...” (5 USC §7102J). This statute also provides for exclusions from these rights.
49. 745. Section 7103(b)(l) is one of three provisions in the FSLMRS that allow exclusions from coverage of Chapter 71 of categories of employees, agencies, or subdivisions of agencies based on national security considerations. Section 7103(a)(3) explicitly excludes specific agencies responsible for investigation, intelligence, and national security work, e.g., the Federal Bureau of Investigation and the Central Intelligence Agency (5 USC §7103(a)(3)). Section 7112(b)(6) restricts “any employee engaged in intelligence, counter-intelligence, investigative, or security work which directly affects national security” from being part of a bargaining unit for the purpose of collective bargaining (5 USC §7112(b)(6)). Section 7103(b)(l) authorizes the exclusion of an agency or subdivision of an agency from the coverage of Chapter 71 for the sake of national security if the President determines that: (1) the primary function of the agency or subdivision is intelligence, counter-intelligence, investigative, or national security work; and (2) the provisions of Chapter 71 cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations (5 USC §7103(b)(l)). The limited authority of §7103(b)(l) provides the necessary ability to adjust the governing personnel rules when the mission of an agency is created. The term “agency” as defined under §7103(a)(3) refers mainly to executive agencies, such as the DoD or the DOJ and will be used in this sense in these observations. In practice, §7103(b)(1) has been applied to exclude subdivisions of agencies rather than entire agencies.
50. 746. The executive orders at issue, dating back to 1979, contain presidential determinations that one or more subdivisions of an agency have as a primary function intelligence, counter-intelligence, investigative, or national security work and that Chapter 71 of Title 5 of the United States Code cannot be applied to these subdivisions in a manner consistent with national security requirements and considerations. A reading of the eight orders demonstrates that the link of many of the particular subdivisions to national security is very clear. Regarding those subdivisions of agencies, with respect to which the link is not as obvious, those subdivisions do indeed have as their primary function intelligence, counter-intelligence, investigative, or national security work. For example, the US Attorney’s Office and the Enforcement Division of the US Marshals Service, both subdivisions of the US DOJ have a direct role in enforcing laws relating to terrorist activities. These types of presidential determinations are made on a case-by-case basis, after a thorough review within the executive branch to ensure that the exclusion meets the requirements of §7103(b)(l).
51. 747. Contrary to the allegations of the AFGE, §7103(b)(l)’s national security exemption may not be invoked arbitrarily. It is extremely difficult to exclude an agency or subdivision of an agency through the operation of §7103(b)(l) because the procedure through which an executive order is issued involves substantial analysis and multi-layer reviews to ensure that the requirements of the statute are met. Executive Order No. 11030, issued in 1962, prescribes the manner in which executive orders shall be prepared, presented, filed and published. According to these rules, any proposed executive order must be submitted to the Director of the Office of Management and Budget (OMB), together with a letter, duly signed by the properly authorized officer of the originating federal agency, that explains the nature, purpose, background and effect of the proposed executive order and its relationship, if any, to pertinent laws and other executive orders. If the Director of OMB approves the proposed order, he or she must transmit it to the Attorney-General, the head of DOJ, for his or her consideration as to both form and legality. If the Attorney General approves the proposed order, it is sent to the President for review and approval. This substantial review procedure shows that these executive orders originate with agency initiatives, in this case in response to workplace adjustments needed within the agency. Moreover, the executive order process demonstrates that a decision to exclude an agency by virtue of §7103(b)(l) is not made by the President alone, contrary to the AFGE’s contentions in its complaint.
52. 748. In determining whether a subdivision of an agency comes within the “national security” exception of §7103(b)(l), the President’s discretion to exercise executive authority granted him by the Constitution is at its highest. Referring to an earlier court decision, the government states that limited judicial review is nevertheless available, under which the President’s action is entitled to a “rebuttable presumption of regularity”. This presumption is not unique to this circumstance, but “has been recognized since the early days of the Republic” in a “variety of contexts”. The presumption “supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their duties”. Thus, while the challenger bears a significant evidentiary burden in seeking to invalidate an executive order issued pursuant to §7103(b)(l), there is access to the courts through this limited judicial review procedure, providing an additional safeguard against misuse of this authority.
53. 749. With regard to the AFGE’s contention that it is not necessary for US Presidents to include in an executive order specific findings relating to the exclusion under §7103(b)(l), it is important to note that this, too, is done for reasons of national security. Few of the documents developed in the executive order review process could be made public due to the confidential nature of the work in which these subdivisions of agencies are engaged.
54. 750. The authority conferred by §7103(b)(l) has been used sparingly since the FSLMRS was enacted in 1978. As a result, the number of employees affected by these exclusions is relatively small, and is far short of the “hundreds of thousands” as the AFGE claims. For example, the number of employees of subdivisions within the Department of Defense Intelligence Community excluded from collective bargaining by executive order, constituting most of §7103(b)(l) exclusions, is less than 6 per cent (roughly 36,000 persons) of the overall DoD civilian workforce. Further, the majority of subdivisions were excluded through the first two executive orders, issued in 1979 and 1982; only a few subdivisions of agencies have been excluded since 1982.
55. 751. Section 7103(b)(l) exclusions are necessary for the reason that collective bargaining is incompatible with the national security work carried out by those subdivisions of agencies because the procedural requirements and information dissemination through negotiation would increase the likelihood that national security could be compromised. Generally, under the FSLMRS, an agency is legally obligated to give a union advance notice of, and the opportunity to bargain over, agency decisions that impact the working conditions of bargaining unit employees represented by the union. Under most circumstances, an agency may not implement a decision that affects conditions of employment until the agency has bargained with the union to agreement or impasse. If the union timely invokes the intervention of the Federal Mediation and Conciliation Service or the Federal Service Impasses Panel upon impasse, the agency generally may not implement its decision until the impasse has been resolved. This bargaining obligation under federal labour law applies to many significant agency decisions, including agency reorganizations, equipment and technology changes, work relocations, contracting out of work, reductions in force, work schedules, shift assignments, overtime assignments, training, drug testing, and agency regulations.
56. 752. Bargaining obligations such as these, however, are untenable in subdivisions of agencies whose missions and functions are related to national security functions. This is not to say that federal employees or their union representatives themselves pose a national security risk. Rather, advance notice of an agency decision and the open nature of the negotiation process could give substantial advantages to enemies of the United States and would increase to an unacceptable level the potential for compromise of agency operations and risk to national security.
57. 753. In considering the AFGE’s allegations, it is important to note that those employed by subdivisions of agencies that have been excluded from collective bargaining by the executive orders at issue are not prevented from forming, joining or participating in a labour organization. Unlike the situation in Case No. 1261 against the United Kingdom, cited by the AFGE, government employees performing intelligence work and related national security functions for the United States Government are not required to relinquish their union membership in order to retain their jobs, even though they are restricted from engaging in collective bargaining.
58. 754. As demonstrated by the foregoing, executive order exclusions issued under §7103(b)(l) conform to ILO principles of freedom of association and collective bargaining. ILO Conventions, as well as the supervisory findings of the Committee of Experts and the Committee, recognize that there are instances in which restrictions on collective bargaining are permissible, particularly in the public sector. Thus, collective bargaining may be restricted when public servants are engaged in the administration of the State, under Article 6 of Convention No. 98, or even prohibited when their duties are of a highly confidential nature, under Article 1 of Convention No. 151. The subdivisions of agencies excluded from collective bargaining by virtue of the executive orders issued under §7103(b)(l) fall simultaneously into both of these categories.
59. 755. The Government states that the Committee has consistently maintained that public servants engaged in the administration of the State are “civil servants employed in government ministries and other comparable bodies as well as officials acting as supporting elements in these activities”. As civil servants employed in government agencies, the employees employed in the subdivisions of agencies prohibited from bargaining collectively under the executive orders at issue are public servants engaged in the administration of the State. As such, they are persons with respect to whom the right to collective bargaining may be restricted.
60. 756. Further, the subdivisions of agencies excluded from collective bargaining under the executive orders at issue are engaged in intelligence, counter-intelligence, and investigative or national security work. There is no question that these excluded subdivisions of agencies at issue perform duties that are highly confidential under Article 1 of Convention No. 151 and therefore, employees of those subdivisions may be excluded from collective bargaining.
61. 757. While the subdivisions of agencies exempted from collective bargaining on grounds of national security have not been designated under US law as part of the armed forces or police, these subdivisions of agencies nonetheless are responsible for protecting the external and internal security of the United States. Furthermore, while this case does not involve questions pertaining to the right to strike, the subdivisions in which they work provide essential services, the compromise of which would pose a clear and imminent threat to the population of the United States.
62. 758. The AFGE correctly notes that there have been instances in which the subdivisions of agencies excluded under §7103(b)(l) had previously been covered under Chapter 71. But, as explained above, this was necessitated by a change in the mission or function of the subdivision of the agency in question to one involving national security matters and a determination that Chapter 71 could no longer be applied to that subdivision in a manner consistent with national security requirements and considerations.
63. 759. Even though these subdivisions of agencies are excluded from collective bargaining under Chapter 71 by virtue of the executive orders, the employees of these subdivisions of agencies have rights to offset the exclusion of their respective subdivisions of agencies from collective bargaining, which serve to safeguard their interests. These employees may file grievances through agency grievance systems generally established by agencies for employees who are not part of the bargaining unit. To illustrate, DoD and DOJ have adopted internal administrative grievance procedures. (Descriptions of these grievance systems were annexed to the reply.) In addition, employees are entitled to bring a representative to each stage of a disciplinary action. Further, federal government employees are protected by a wide variety of workplace rights and other protections (details of these were annexed to the reply).
64. Other exclusions from the FSLMRS
65. 760. The AFGE alleges that the exclusion of employees of the NGA, (formerly known as the National Imagery and Mapping Agency) and the TSA from the protections of the FSLMRS is inconsistent with the basic principles of freedom of association and collective bargaining. While these exclusions stem from different laws than the exclusions discussed above, the rationale, operation and effect of these laws are analogous to those underlying the application of the executive orders pursuant to §7103(b)(l).
66. 761. The US Congress expressly authorized the Director of NGA to terminate bargaining unit coverage for positions that have been modified to include intelligence, counter-intelligence, investigative, or security duties (10 USC §461(c)(l)). The Director of NGA made such a determination on 28 January 2003. Similarly, the Administrator of the TSA, which was transferred to the DHS, Directorate of Border and Transportation Security, by the Homeland Security Act of 2002 was granted broad authority by the Aviation and Transportation Security Act (ATSA), (2001), to determine conditions of work of federal employees carrying out security screening at US airports. On 8 January 2003, the Administrator determined that airport security screeners would henceforth not be entitled to engage in collective bargaining.
67. 762. In both cases, these determinations were made in light of the critical national security responsibilities of those agencies and the federal employees who work there. Just as in the case of exclusions under §7103(b)(l), they were carefully and narrowly drawn, in conformity with ILO principles of freedom of association and with no prejudice to the right of those federal employees to exercise their right to form, join or participate in a union.
68. 763. Further factual details concerning the rationale and effect of the exclusion from collective bargaining at NGA and TSA were provided in Annex to the reply.
69. New personnel systems at the Department of Homeland Security and the Department of Defense
70. 764. The Government refers to the AFGE’s assertion that the two new personnel systems that Congress recently authorized within DHS and DoD are not in conformity with the principles of freedom of association and collective bargaining. The Government then goes on to describe the key elements set forth in the legislation for the establishment and the development of the DHS system and the DoD system, which it maintains, do in fact recognize the basic principles of freedom of association and collective bargaining.
71. The DHS personnel system
72. 765. The legislation creating DHS was enacted in direct response to the attacks of 11 September 2001. These attacks drastically changed the sense of security enjoyed by the United States and revealed significant vulnerabilities in the United States homeland defence, which necessitated changes in how national security functions are carried out. After a period of intense scrutiny, an effort was initiated to reorganize the national security functions spread throughout the executive branch under the direction of one cabinet-level agency. In November 2002, the Homeland Security Act was signed into law.
73. 766. The HSA merged 22 organizations and functions previously assigned to other federal agencies into a new agency, the most significant reorganization in the executive branch of the US Government in more than 50 years. DHS was created with the overriding mission of protecting the nation against further terrorist attacks. DHS analyses threats and intelligence, guards US borders and airports, protects US critical infrastructure, coordinates the response of the United States to emergencies, and implements other security measures.
74. 767. The HSA authorized the Secretary of DHS to establish by regulation a new human resources management system, separate and apart from the civil service personnel system established under the Civil Service Reform Act. These regulations must be issued jointly with the Director of OPM. Through this authority, DHS may establish a modern, flexible human resources system to support its mission and improve employee performance that supports the agency’s primary mission of protecting Americans from attack, without compromising fundamental employee rights.
75. 768. The AFGE claims that this reorganization authorized the elimination of collective bargaining and the right to union representation and amounts to an “agenda” to silence federal unions. The HSA shows clearly that this is not the case. Section 9701(b)(4) of the HSA provides:
76. Any system established ... shall ... ensure that employees may organize, bargain collectively, and participate through labor organizations of their own choosing in decisions which affect them, subject to any exclusion from coverage or limitation on negotiability established by law ...
77. In including this language, Congress created an unequivocal requirement with which any modifications resulting from the reform process must conform: any new personnel system must provide for freedom of association and collective bargaining. Moreover, the legislation does not allow the new personnel system rules to completely replace the Civil Service Reform Act, which applies generally to federal civil servants. Rather, it allows DHS to modify provisions within certain designated chapters according to specific needs. The authority to make changes is designed to ensure that the new human resources management system adhere to the critical mission requirements while protecting the civil service rights, including the freedom of association and collective bargaining rights, of its employees.
78. 769. The legislation also mandates substantial employee and union participation through a collaborative mechanism. Through this mechanism, employees are given a framework in which to voice their views regarding the design, development, and implementation of the labour-management relations system and later modifications to this system. The key elements of this mechanism include: (1) notice and exchange of views; (2) consultation with the possibility of mediation; and (3) implementation with congressional oversight.
79. 770. Notice and exchange of views. With respect to any proposed system or adjustment, the Secretary of DHS, together with the Director of OPM, must give employee representatives at least 30 calendar days to review and make recommendations to the proposal and give any recommendation received from such representatives “full and fair consideration”. Following receipt of the recommendations from the employee representatives, the Secretary of DHS and the Director of OPM may accept the recommendations that they deem advisable.
80. 771. Consultation with the possibility of mediation. With respect to any parts of the proposal that they did not accept, the Secretary of DHS and the Director of OPM must meet and confer for not less than 30 days with the employee representatives in order to reach agreement on whether and how to proceed on those parts of the proposal. At the option of the Secretary of DHS, or if requested by a majority of the employee representatives participating, the services of the Federal Mediation and Conciliation Service may be used during the meet-and-confer period to facilitate the process of attempting to reach an agreement.
81. 772. Implementation with congressional oversight. Any part of the proposal to which the employee representatives do not make a recommendation or with respect to which the Secretary of DHS and the Director of OPM accepted the recommendations may be implemented immediately. With respect to those parts of the proposal about which there was not agreement, if the Secretary of DHS determines that further consultation and mediation is unlikely to produce agreement, he or she may implement those parts, but only after 30 days have elapsed after notifying Congress of the decision to so implement the parts of the proposal.
82. 773. The requirement to notify Congress of a decision to implement a part of a proposal with which the employee representatives did not agree gives Congress the final authority, rather than the Secretary of DHS, as the AFGE asserts. Not only must any personnel plan conform to the requirement set out in the Act that freedom of association and collective bargaining be preserved, but the legislation ensures that Congress has the opportunity to modify the law if Congress concludes the requirements of the legislation are not being satisfied.
83. 774. The mechanism set forth in the new legislation requires the Secretary of DHS and the Director of OPM to submit any proposed system to the union representatives for their review. In fact, the two agencies have gone above and beyond this requirement in creating further opportunities for employee involvement. From the beginning, the Secretary of DHS and the Director of OPM made a commitment that the new human resources system would be a result of a collaborative, inclusive, and meaningful process throughout its entire design process, rather than the thirty-day advance notice of a proposal required by statute. To this end, in early 2003 they established a design team including unions representing DHS employees, including the AFGE, that carried out research and extensive solicitation of views though a series of town hall (all-employees) meetings, meetings with 55 focus groups, and exchanges with a field team composed of DHS managers and local union officials. The options that were developed were presented to a senior review committee, which included the president of the AFGE, at a hearing at which public comments were also received. This Committee prepared a summary report to accompany the options, which was sent to the Secretary of DHS and the Director of OPM. Thus, DHS went to very substantial lengths to create extraordinary avenues of participation for employees and their representatives prior to 20 February 2004, when the proposed system was submitted to the employees and their representatives for review as required under the legislation. The DHS proposed regulations and the accompanying supplementary information providing an extensive description of the collaborative design process were published in the Federal Register for public comment (these proposals were annexed to the reply). In the design process of the new human resources management system, the design team was careful not to infringe on the statutory provision requiring the protection of freedom of association and collective bargaining.
84. 775. The proposed regulations include a provision that retains the right to form, join, or assist in any labour organization and to engage in collective bargaining as required by Congress. The DHS and the OPM have been engaged in dialogue and exchange of views. This process will soon culminate in the issuance of the final regulations establishing the new human resources management system, which are currently under review at the OMB. It is clear that whatever personnel rules emerge from the process, they must satisfy the legislative requirement to uphold these federal workers’ right to freedom of association and collective bargaining. The benefits gained by federal sector employees through collective bargaining are supplemented by extensive benefits and protections, including a wide range of rights set forth in the Civil Service Code as well as rights from laws of general application. Many of these benefits are bargained for in the private sector, such as rights to paid leave and retirement benefits. It should be noted that the HSA provides that the new personnel regulations shall not affect DHS employees’ rights under the discrimination, whistleblower, and merit principle provisions, further discussed in the annex.
85. 776. Congress’ intent to circumscribe the flexibility granted by the legislation is further supported by its act of including “sunset provisions” into the authorizing law. Under these provisions, the DHS’s authority to change the personnel system through regulation expires in 2009. The DHS has stated that, during the period leading up to this date, it is committed to an ongoing evaluation of the system to ensure that the personnel regulations are achieving their intended purpose.
86. 777. In conclusion, the Government states that under ILO principles, public employees engaged in the administration of State and whose duties are of a highly confidential nature may be excluded from the right to bargain collectively. These employees fall into both categories. Therefore, the authority granted in the legislation is consistent with the ILO principles. As described earlier in the observations, the exclusion of any DHS employees from collective bargaining are offset by a range of protections, including grievance procedures and the right to appeal adverse employer decisions.
87. The DoD’s National Security Personnel System
88. 778. After the attacks of 11 September 2001, a consensus emerged within DoD that a new civilian personnel system was needed. DoD’s civilian personnel management system was fragmented in that it was governed by multiple titles of the US Code, included nine personnel demonstration projects covering 30,000 employees, 50 different pay plans, and several alternative personnel systems. Further, DoD was concerned that the former industrial-age civil service system was not agile enough to help fight the war on terrorism and transform the Department.
89. 779. In November 2003, Congress enacted legislation that authorized the Secretary of DoD, acting jointly with the Director of OPM, to establish by regulation a human resources management system for DoD, to be called the National Security Personnel System (NSPS) (5 USC §9902(a)). This legislation shares many common features with the DHS legislation. This Act too contains an explicit requirement by Congress that any new system must provide for freedom of association and collective bargaining (5 USC §9902(b)(4)). In addition, it too contains a collaborative mechanism for the design, development, and implementation of the system that includes the same key elements discussed above.
90. 780. With respect to DoD’s NSPS, collective bargaining will occur at the national level rather than the organizational level in order to facilitate an efficient and effective dialogue (5 USC §9902(m)(4)). DoD is now authorized to streamline the collective bargaining process, which used to involve negotiations with approximately 1,400 separate bargaining units ranging from 30 employees to 30,000 under the former system. However, there is no intent to eliminate the role of local bargaining units to bargain over issues that are local in nature. Local bargaining units will continue to have a valuable role to play in the new system.
91. 781. Similar to the DHS authority, Congress also limited the period during which the changes may apply with a “sunset provision.” The authority to establish, implement and adjust the new labour relations system expires in 2009, at which time the provisions of Chapter 71 of the Civil Service Reform Act will apply, unless it is extended or otherwise provided for in law, (5 USC §9902(m)(9)). (Further detail regarding the currents status of the NSPS was annexed to the reply.)
92. 782. The Government maintains that the authority granted by Congress to DHS and DoD to issue regulations creating new personnel systems was carefully tailored to preserve federal employees’ freedom of association and collective bargaining rights and included a significant mechanism for employee and union participation. Both agencies are making progress in the design and development of their respective systems consistent with the collaborative mechanism described above. While the personnel systems are not yet complete, any system developed will be required to satisfy Congress’ requirements to provide for employee rights to freedom of association and collective bargaining.
93. 783. In conclusion, the Government asserts that the foregoing observations demonstrate that the United States is in full conformity with the fundamental ILO principles of freedom of association and collective bargaining with respect to federal employees whose work is critical to national security. US law provides, consistent with ILO principles, for limited instances in which employees may be excluded from the statutory right to bargain collectively when their duties affect national security. Significantly, these employees still have the right to join labour organizations of their choice and they enjoy a range of other rights and benefits that serve to safeguard their interests. Furthermore, the new personnel systems being developed at DHS and DoD are also consistent with the basic principles of freedom of association and collective bargaining in that the authorizing legislation contains strict requirements to provide for employee rights to freedom of association and collective bargaining. Through the collaborative mechanism set forth in the legislation, employees and their representatives are provided meaningful opportunities to participate actively in the design, development, and implementation of those systems.
94. 784. In a communication dated 4 August 2006, the Government indicates that, as the recent partial withdrawal made by the complainant in this case does not provide any further substantive information regarding the TSA than what was included in the original complaint, its position has not changed. The Government further indicates its readiness to respond to additional AFGE allegations or to specific questions raised by the Committee.

C. The Committee’s conclusions

1. 785. The Committee notes that the allegations in this case concern the violation of the collective bargaining rights of a variety of federal employees through the expanded use over several decades of executive orders exempting certain employees from the Federal Service Labor-Management Relations Statute (FSLMRS). In particular, following the complainant’s request for a partial withdrawal, the complainant alleges that federal airport screeners have been denied their collective bargaining rights.
2. 786. Setting out the historical context, the complainant first refers to the adoption in 1978 of the FSLMRS, the basic legislation governing labour relations between federal civil employees and their managers. The FSLMRS was based on the conclusion that “labor organizations and collective bargaining in the civil service are in the public interest” (5 USCA. §7101(a)). In setting out the definition of “employee” and “agency” covered by the Statute, §7103(a) already excludes certain employees and agencies. Furthermore, §7103(b)(1) authorizes the President to issue orders excluding otherwise covered agencies or subdivisions thereof if the President determines that: (a) the agency or subdivision has as a primary function intelligence, counterintelligence, investigative or national security work; and (b) the provisions of this chapter cannot be applied to that agency or subdivision in a manner consistent with national security requirements and considerations.
3. 787. The complainant alleges that the systematic use of the authority granted under §7103(b)(1) has resulted in the exclusion by executive fiat of hundreds of thousands of federal employees from the rights of the FSLMRS and thus from the rights stemming from ILO Conventions on freedom of association and collective bargaining. According to the complainant, presidential orders issued under this section going as far back as President Carter’s term in office have inappropriately denied federal government employees who are not directly engaged in the administration of the State the right to union representation and collective bargaining. Moreover, the complainant contends that a court judgement concerning the use of this section by President Reagan has established that such presidential actions are entitled to a presumption of regularity and are thereby essentially not reviewable by American courts. For this reason, the complainant considers that this matter can only be properly addressed at the international level.
4. 788. The complainant adds that the current administration has continued this tendency of infringing upon collective bargaining rights and has even carried out a more encompassing prohibition of these rights under the guise of government structural adjustment and in the name of national security where US courts generally do not have jurisdiction to challenge.
5. 789. The Government, for its part, admits to recent restrictions of the collective bargaining rights of various groups of federal employees, but insists that these restrictions must be considered within the context of the permissive provisions in US law that allow such restrictions for employees whose duties affect national security. The Government maintains that all of the measures called into question in the complaint were a direct response to the new and greater threats to citizens and residents of the United States since the terrorist attacks of 11 September 2001 and were aimed at ensuring that agencies responsible for national security can react immediately and effectively. Moreover, the Government contends that these measures were narrowly drawn so as to strike a balance between the security of the State and the rights of public sector employees. Finally, the Government argues that exclusions from the FSLMRS provisions for employees involved in national security work are necessary because the cumbersome procedures involved with collective bargaining on significant agency decisions, such as agency reorganizations, equipment and technology changes, work relocations, etc., are incompatible with national security work.
6. 790. As regards more specifically the §7103(b)(1) permissible exclusions, the Government further evokes what it describes as a substantial multi-layer review process for the presentation, filing and publishing of executive orders excluding certain federal employees from the FSLMRS. According to the Government, such orders are not unilaterally invoked by the President, but rather originate with agency initiatives that are reviewed by the Director of the Office of Management and Budget (OMB) and the Attorney-General. While judicial precedence has established a “rebuttable presumption of regularity” for the President’s actions in this respect, such orders may be appealed under a limited judicial review procedure, thus providing, according to the Government, an additional safeguard against the misuse of this authority.
7. 791. While noting that both the complainant and the Government refer to the justification of these restrictions in security terms and, in particular, the specific reference to this effect in the exclusionary provision of the FSLMRS, the Committee recalls that, when examining the question of collective bargaining rights for civil servants, it has always used a standard similar to that developed in Convention No. 98 concerning public servants engaged in the administration of the State. The Committee will therefore base its considerations on whether the federal employees concerned may be properly considered as public servants engaged in the administration of the State, which in the Committee’s view is a broader criterion encompassing the more narrowly defined concept of national security work.
8. 792. The Committee notes in this respect that the only allegation remaining in this case concerns the issuance by the Transportation Security Administration (TSA) Administrator of an order, by virtue of the authority vested in him by the Aviation and Transportation Security Act (ATSA), denying 56,000 federal airport screeners the right to engage in collective bargaining or be represented by any organization for collective bargaining purposes. While the complainant attempted an appeal to the Federal Labor Relations Authority (FLRA) arguing that the ATSA did not grant the Administrator any such authority, the FLRA, referring to the sole and exclusive jurisdiction of the agency to determine conditions of employment of security screening personnel and the authority under 5 USCA §7101 et seq., dismissed the petition on the ground that it lacked jurisdiction.
9. 793. The Government indicates that the rationale, operation and effect behind the law permitting the exclusion of federal airport screeners from the protection of the FSLMRS are analogous to those underlying the application of the executive orders pursuant to §7103(b)(1). According to the Government, the Administrator of TSA was granted broad authority by the ATSA of 2001 to determine conditions of work of federal employees carrying out security screening at US airports and, drawing its exclusions carefully and narrowly, the TSA Administrator determined, in January 2003, that airport security screeners would henceforth not be entitled to engage in collective bargaining. There would, however, be no prejudice to the right of those federal employees to exercise their right to form, join or participate in a union.
10. 794. In the case of this particular exclusion, the Committee is concerned about two issues: (1) the use of an ever-enlarged definition of work connected to national security to exclude employees that are further and further away from the type of employee considered to be “engaged in the administration of the State”; and (2) the apparent lack of, or at least severely limited jurisdiction, to review possible excesses of authority in excluding federal employees from the FSLMRS. As regards the determination of public servants engaged in the administration of the State, the Committee recalls, as was cited in the Government’s reply, that a distinction must be drawn between, on the one hand, public servants who by their functions are directly engaged in the administration of the State (that is, civil servants employed in government ministries and other comparable bodies), as well as officials acting as supporting elements in these activities and, on the other hand, persons employed by the Government, by public undertakings or by autonomous public institutions [see Digest, op. cit., para. 794]. When previously examining a complaint against the Government of the United States in respect of the violation of the collective bargaining rights of federal employees, the Committee had concluded that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service [see Digest of decisions and principles of the Freedom of Association Committee, 1994, 4th edition, para. 893 (see also Case No. 1557; 284th Report, para. 806 and 291st Report, para. 285(a))].
11. 795. In light of these abovementioned principles, the Committee queries whether the 56,000 federal airport screeners in question here may actually be considered as public servants engaged in the administration of the State. While recognizing that there is clearly a security element involved in their work, as indeed exists for security screeners of private enterprises, the Committee is concerned that the extension of the notion of national security concerns for persons who are clearly not making national policy that may affect security, but only exercising specific tasks within clearly defined parameters, may impede unduly upon the rights of these federal employees. The fact that the link of exclusions to national security concerns so clearly set out in §7103(b)(1) (referred to by the FLRA and stated by the Government to be analogous to the rationale used by the TSA) on the basis of a dual requirement – this section refers not only to the primary function of the work, but also to a determination that the FSLMRS could not otherwise be applied to those employees in a manner consistent with national security requirements – has been considered unreviewable by the FLRA has added to the Committee’s concern in this regard.
12. 796. In these circumstances, the Committee recalls its previous conclusion in Case No. 1557 that priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service. In particular, the Committee wishes to emphasize that one of the main objectives of workers in exercising their right to organize is to bargain collectively their terms and conditions of employment. It requests the Government to carefully review, in consultation with the workers’ organizations concerned, the matters covered within the overall terms and conditions of employment of federal airport screeners which are not directly related to national security issues and to engage in collective bargaining on these matters with the screeners’ freely chosen representative. It requests the Government to keep it informed of the measures taken in this regard. The Committee further trusts that all necessary measures will be taken to ensure that the organizational rights of these employees are effectively guaranteed in practice and that they may be represented in respect of their individual grievances by the organizations freely chosen by them.
13. 797. The Committee reminds the Government that the technical assistance of the Office is available in respect of the matters raised in this case.