Definitive Report - Report No 45, 1960

Case No 212 (United States of America) - Complaint date: 21-NOV-59 - Closed

1. 69. The complaint of the World Federation of Trade Unions is contained in a communication addressed directly to the Director-General of the I.L.O on 21 November 1959. The Government forwarded its observations by a letter dated 4 February 1960.

A. A. The complainants' allegations

1. 70. The complainants allege that the invocation of the Taft-Hartley Act by the President of the United States and the decision of the Supreme Court authorising the Government to order the suspension of the strike which recently took place in the American steel industry are incompatible with the exercise of the right to strike which the Committee has described as constituting " a legitimate weapon of the trade unions in the defence of the interests of their members ", and that the foregoing represents an intervention in the internal affairs of trade unions which cannot be reconciled with the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).
2. 71. The complainants then give their version of the events which led to the situation referred to above. On 15 July 1959 the steelworkers called a strike in support of demands for higher wages and greater security of employment in the face of industrialisation and automation. The W.F.T.U contends that profits were sufficient to enable the workers' demands to be met without increasing the price of steel, but that the employers not only resisted these demands but attacked the acquired rights of the workers. It is alleged that in the first six months of 1959 the employers speeded up production so as to be ready to force the workers into a long strike and that the Government abetted these intentions because of its view that the results of the recession called for a reduction in stocks of steel. The purpose of the employers all along, it is alleged, was to force a strike for two or three months and then to get the Government to intervene under the Taft-Hartley Act and suspend the strike for 80 days as soon as the big monopolies began to suffer. Intervention by the President at a moment when the strike threatened neither security nor the nation but only the selfish interests of the employers, contend the complainants, is a violation even of the Taft-Hartley Act, because the measures invoked by the President apply only in case of national emergency. The complainants say that the Automobile Workers' Union protested to the President, stating that his aim had been to mitigate the pressure on the industrialists and that in such circumstances his interference was " nothing more than a utilisation of the power and authority of the Government of the United States as a weapon for breaking the strike ".
3. 72. A copy of the above complaint was transmitted to the Government of the United States on 2 December 1959, for its observations, in accordance with the procedure for the examination of complaints of alleged infringements of trade union rights.
4. 73. In its letter dated 4 February 1960 the Government declares its support for the Committee and its willingness to co-operate with it in the investigation of any charges against the United States which are not purely political in character and which on the basis of the evidence presented are found under established procedures to justify fact-finding and/or conciliation. The Government considers that the complaint of the W.F.T.U consists of conclusions unsupported by facts. The steelworkers, declares the Government, enjoyed a legal right to strike until such time as the health or safety of the nation was found to be endangered. The national emergency provisions of the Labor-Management Relations Act, 1947 (the " Taft-Hartley " Act), embody the solution arrived at by Congress for dealing with large-scale work stoppages which endanger the national health or safety. Under these provisions, where the President finds that there is a threatened or actual strike or lockout affecting an entire industry or a substantial part thereof engaged in trade, commerce, transportation or transmission, or communication among the states or with foreign nations, or engaged in the production of goods for commerce, which, if permitted to occur or to continue, will imperil the national health or safety, he may appoint a Board of Inquiry to inquire into the issues involved. The Board hears both parties and reports to the President. At that stage the President may direct the Attorney-General to petition the competent court to enjoin the strike or lockout. If the court finds that the case meets the same tests as the President himself applies (see above) it may enjoin the strike or lockout until a settlement is reached but not for a period exceeding 80 days. During this period both management and labour are brought within the scope of the injunctive power and both are directed to " make every effort to adjust and settle their differences ". Failing voluntary settlement during the specified period under the injunction, ending with a secret ballot on the employers' last offer, the workers are free to resume the strike. In the case of the steel industry, the workers were free to strike and did strike for 116 days. Then the appropriate statutory procedures were applied, resulting in a finding of danger to the national health and safety. With reference to the allegation that the President initiated action at a moment when the monopolies began to feel the effects of the strike, the Government points out that the W.F.T.U do not dispute that a whole industry was involved or suggest that intervention should have been made earlier. The only point at issue, therefore, in the view of the Government, was how, much longer, if any, the Executive might have waited before taking action to protect national health or safety.
5. 74. The Government encloses a copy of a letter dated 12 January 1960 addressed to the I.L.O by the United Steelworkers of America and asks for it to be included in the record in the case. Referring to the judgment of the Supreme Court upholding the injunction, the Government quotes a finding of the Court that " the strike imperils the national safety ", this being based on " evidence of the strike's effect on specific defence projects ". These projects, declares the Government, included the missile, nuclear submarine and naval shipbuilding and space programmes. The determination, concludes the Government, was based solely on danger to the national safety, the effects of the strike on the nation's health not being taken into consideration in this instance.
6. 75. The letter of 12 January 1960 of the United Steelworkers of America stated that it had come to the union's attention that a complaint had been filed by the W.F.T.U. The union declares that in October 1959 the President, having formed the opinion that the strike was imperilling, or if continued would imperil, the national health or safety, convened a Board of Inquiry. After it had made its report, the Pittsburgh District Court, after hearing the parties, issued an injunction. The case was appealed successively to the Circuit Court of Appeals and then to the Supreme Court, the injunction being upheld. One justice in the Circuit Court and one in the Supreme Court had supported the union's case. At issue was the question whether or not the national health or safety was or would be imperilled by the strike. The union affirms its opposition to the Taft-Hartley Act, but points out that it was at all times able to have full recourse to due process of law and that during the 116-day strike no worker had been arrested or subjected to persecution by the Government. During the 80 days cooling-off period negotiations continued. On 4 January 1960 the union concluded a collective agreement which it regards as a good one. It could legally have called a further strike from 26 January onwards but there was no need to do so ; however, the existence of the right to strike again was a potent factor in the negotiations. In conclusion the union explains its reasons for considering it inappropriate for the W.F.T.U to complain to the I.L.O with respect to this matter. On 28 January 1960 the United Steelworkers of America wrote again to the I.L.O formally objecting to the complaint of the W.F.T.U and stating that its letter of 12 January constituted a request to the I.L.O. " to reject this complaint as completely without foundation ".
7. 76. With reference to the letter addressed to the I.L.O on 12 January 1960 by the United Steelworkers of America, the Committee wishes to emphasise, at the outset, that the complaint of the W.F.T.U was communicated and disclosed by the I.L.O only to the members of the Committee and to the Government of the United States.

B. B. The Committee's conclusions

1. 77. The procedure for the examination of complaints of alleged infringements of trade union rights is not a procedure as between organisations ; it is a procedure the essence of which is to advise the Governing Body on allegations relating to governments. In these circumstances, there is no question of either the organisation presenting a complaint or an organisation which is affected by the subject-matter of the complaint being a party to the proceedings. The purpose of the proceedings is to enable the Governing Body to gauge how far the principle of freedom of association set forth in the Constitution of the Organisation and in the successive decisions taken by the International Labour Conference is observed by the Member of the Organisation concerned. For these general reasons, the Committee considers that it ought not to examine the case submitted to it as a case between the W.F.T.U and the United Steelworkers of America.
2. 78. In this particular case, the observations of the organisation concerned have been communicated by the Government. This would seem to call for two observations on the part of the Committee. Firstly, the Committee considers that a government cannot relieve itself of its responsibility for furnishing information by transmitting the observations of an organisation, but that what a government is called upon to do is to explain its own conduct and not to communicate the observations of an organisation concerning that conduct. Secondly, however, the Committee considers that this does not eliminate the possibility that the observations of the affected organisation communicated by the government may be of evidential value, but that the extent of their evidential value depends on the extent to which the Committee is in a position to satisfy itself from all the attendant circumstances that they represent an unfettered expression of the independent views of the organisation concerned, In this particular case, the terms of the observations and the fact that they relate to an open disagreement between the government and the organisation and are critical of the legislation the application of which is the subject of the complaint appear to the Committee to justify it in treating them as a free expression of an independent opinion so far as it is necessary for the Committee to take them into account by way of further explanation of the reply given by the government itself. The Committee must, however, take exception to the suggestion contained in the observations communicated to it that it would be more profitably employed in examining allegations relating to other countries, the duty of the Committee is to examine with equal impartiality and on the basis of the same principles all allegations submitted to it irrespective of their source or of the government to which they relate.
3. 79. The actual issue regarding the steelworkers' strike before the Committee seems to be quite clear. It is common ground that the strike endured for 116 days, at which point the President of the United States set up a Board of Inquiry and, after its report had been made, asked the Attorney-General to apply to the courts for an injunction to put an end to the strike for a period of 80 days. The issue before the ordinary courts depending on a finding as to one essential fact-did the strike in a basic industry at that point imperil national safety or national health. The President contended that it did, the union directly concerned contended that it did not, and, after both sides has pleaded their cases in the ordinary way, the courts-and finally the Supreme Court, by a majority-upheld the President's contention, on the ground that the strike threatened certain projects essential to national defence. The effect of the injunction was to oblige both parties to negotiate further with a view to settlement. If no settlement could be reached within 80 days the workers were free to strike again. In other words, the right to strike was temporarily restricted pending recourse to a conciliation and negotiation procedure. After that time the strike could have been resumed, but was not resumed, according to the United Steelworkers of America, because a collective agreement was concluded which that organisation has said it regards as a favourable one.
4. 80. In a number of cases, the Committee has pointed out that the right to strike is generally accorded to workers and their organisations as an integral part of their right to defend their collective economic and social interests', provided that the right is exercised with due regard to temporary restrictions placed thereon, e.g. cessation of strikes during conciliation and arbitration proceedings in which the parties can take part at every stage. In the present case, even before the union concerned could be forced to accept the temporary restriction in the form of a cessation of the strike for a maximum of 80 days to permit of conciliation and negotiation, there was the further safeguard that the ordinary courts had first to be satisfied by the evidence that the strike did in fact imperil national safety or national health.

The Committee's recommendations

1. 81. In these circumstances, the Committee, considering that allegations regarding the prohibition of strikes are not outside its competence in so far as such a prohibition affects the exercise of trade union rights, recommends the Governing Body to decide that the complainants have not in this case offered sufficient evidence to show that the temporary restriction placed on the exercise of the right to strike constituted in this particular instance an infringement of trade union rights.