STATEMENT OF TERRY

ROGERS, LEGISLATIVE LIAISON, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, ACCOMPANIED BY STEPHEN KOCZAK, SPECIAL PROJECTS ASSISTANT

Mr. KOCZAK. Thank you, Mr. Chairman. We would be most pleased to summarize our statement. We understand the entire statement will be part of the record in any case.

[The statement of Mr. Blaylock is included in the testimony of Mr. James J. O'Donnell. One page of the statement, however, differs from the earlier statement. The change is as follows:]

CONCLUDING STATEMENT

We have presented the problems created by the Treaty and by Public Law 95-454 in the area of Labor-Management Relations.

One of the steps which the Congress might consider to overcome the problems inherent in Public Law 95-454 is to amend Section 7103(a)(B)(i) to read as follows (the amendment to that section is underlined)

"(i) an alien or noncitizen of the United States who occupies a position outside the United States, excepting that any such alien or noncitizen of the United States serving in the area made available to the United States by the Republic of Panama under the Treaties of 1977 shall be considered, for purposes of this Chapter, as if employed in a position not outside the United States"

Such an amendment, or one similar in intent, would eliminate the problems we have been discussing regarding the extension to aliens and non-citizens of the United States of the protections of Title VII of Public Law 95-454.

As to those problems which will arise because of the provisions of the Treaties, as distinct from Public Law 95-454, we submit that many of these are difficult to anticipate in concrete terms at the present time and we reserve our position on those issues until they have emerged. However, one of the procedural ways in which we believe they can be best anticipated is through the enactment of legislation such as that which I have proposed in Annex III to this statement.

In conclusion I wish once again to assure you of the fullest cooperation of myself and my staff in addressing all the issues which will arise. Please accept my best wishes and my thanks on behalf of our union and the Federal employees, both United States nationals and those who are aliens, who look to this Committee for the safeguarding of their rights.

Mr. KOCZAK. Mr. Chairman, our statement deals primarily with the issue of labor and management relations. We find certain problems that have arisen from two sets of considerations. Consideration number one is the treaty. The treaty definitely is directed toward displacing American national employees with Panamanian national employees. Our concern was in this situation there appears to be a conflict of interest as among these employees, in addition to a community of interest that they are employees, when they deal with management.

The second consideration that we have to address is enactment of Civil Service Reform Act which had brought the labor-management relationship in the Federal Government under statutory jurisdiction and taking it out of Executive order or policy-making or discretionary action by the Executive branch. In reviewing these sets of legal developments, we found that the most plausible arrangement would be to bear in mind the present status of these employees. If we are correct in our interpretation and the Panama Canal Zone is still the zone and not that special area which is made available to American authorities, then both the American nationals and so-called alien or non-U.S.-citizen employees come under Title VII of the Civil Service Reform Act. They are not now being handled by the Government in that capacity. We find that in

this sense there is an oversight or a cultural lag or a legal lag in the handling of relationships of management and the Federal employees irrespective of their nationality in that area.

We have also taken into account that the remedies to the American national employees in the event they are displaced are to be supervised entirely and administered entirely by American authorities, U.S. authorities, and that the Panamanian authorities have no responsibilities toward American national employees.

In light of this, we were going to suggest for your consideration the following principles as to how they are quantified or incorporated into law, there is considerable latitude as to how one would do that.

The two principles are the following: First, that they be created in the Office of the Special Counsel of the Merit Systems Protection Board the requirement that all U.S. national employees have available to them directly protection of that Special Counsel to see that their rights to jobs in the United States if they are displaced be carried out and enforced.

We are concerned that we find in many cases statute exists that no one supervises it. There is no way to administer it. Inasmuch as it is American national employees who will be the ones who will be displaced, training replacements and Panamanian national employees are the ones who will be seeking to displace them, we felt that there needed to be a very clear commitment on the part of the Government that the facilities of the Special Counsel be available to them. That is part of our Annex 3.

We have outlined a suggested amendment which could be incorporated in any bill that you pass. It largely sees to it that they are afforded these protections.

On the matter of technique or mechanisms for procedures for labor-management relations, no matter who is the employer in this case, whether it is the Commission or the U.S. governmental authority, Department of Defense or any other U.S. governmental authority, we suggested that both American national employees and Panamanian national employees have identical rights vis-a-vis management, title VII, and in one version of our testimony we have no objection to it being done by Executive order for Panamanian nationals. However, on later deliberation, we considered that perhaps the simplest thing would be for your committee to recommend an amendment to the Civil Service Reform Act of 1978 to Public Law 95-454 to that section which states that labor-management relations will not be available to any alien or noncitizen of the United States which occupies a position outside of the United States.

We were suggesting for your consideration that one way to solve this problem of affording the rights to the Panamanian national vis-a-vis the management to be identical with the rights of Americans vis-a-vis management is to add a phrase that which reads like this, either this way or something similar: Excepting that any such alien or noncitizen of the United States serving in the area made available to the United States by the Republic of Panama under the Treaties of 1977 shall be considered, for purposes of this chapter, as if employed in a position not outside the United States.

That would mean that the issue as to what are the rights of the Panamanian employees vis-a-vis management would be resolved because they would be the same rights they have today.

As to whether or not they should be in the same unit, this is an issue of conflict of interest among employees, there are several techniques, and one of them is to be handled administratively, establish that you can only have people who are communities of interest, major communities of interest, who should be in the same units, and I would assume that where the board which would finally have to determine the propriety of these units would decide there is no community of interest, in certain cases and in other cases they might find there is a community of interest, there are no problems.

So that to summarize this statement, we feel that the treaties have created a serious problem, a problem which it did not anticipate. We found subjectively in discussions with some of the unions and some of the employees in Panama that the Panamanian national employees interpret the treaty or tend to interpret the treaty saying they should have the same rights that private enterprise employees have in the United States which is to bargain for wages and strike, if necessary, whereas the general understanding that we have, in light of the legislation that is now in the books, that is certainly the American national employees would not have those rights, and that the rights which now exist under title VII apply both to American nationals and to aliens, principally Panamanian national employees, which is the right as written in title VII of the Civil Service Reform Act that was passed last year by Congress.

Now, it is not our purpose at this point to go into the issue of the right to strike and the issue to bargain for full wages. We are members of the AFL-CIO. We are committed to that in the long range. We did want to point out in this Commission confronting you as legislators that we do not have that right now and a problem that has arisen under the treaty, a psychological problem is a matter of interpretation that there are many nationals who are not American citizens who construe the treaties to give them the same rights as private enterprise employees have because they construe the Commission to be a private corporation so far as labor-management relations go.

It is a difficult subject to discuss for which to devise a solution. Our own recommendation is that obviously all American national employees are entitled to title VII now and they will be entitled to title VII after the treaties come into force. It is our view that many Panamanian employees, they are entitled to provisions of title VII now and that they should by Executive order at least, and if you are so disposed in your wisdom to enact a statute to that effect, it will be continued to be entitled under implementing legislation to the same provisions of title VII under the labor-management relations, but neither bill before you takes that position. Both bills, H.R. 111 and 1726 deprive both the American, purportedly the Panamanian nationals of certain rights they now have. We are opposed to private Americans who work in Panama, those rights they would have in Germany or Japan or anywhere else—we are

concerned that we do not appear to say that the Panamanians in dealing with management should have less rights than Americans. With that I have sought to summarize a rather lengthy and complex statement. I do very honestly request that you look particularly at our argument in favor of Annex 3, which is to protect Americans in obtaining jobs here. We do that for two reasons. If they cannot get jobs here after being displaced in Panama, the only option they have is to retire. That will be one of the options to consider. I think the whole cost, this is of great interest to the issue of cost, the cost of the program, retirement program which I believe Chairman Cambioly [sic] estimates at $205 million, will be affected by the question as to whether or not these displaced Americans are able to obtain jobs in the United States. This I think is a matter on which you might wish to give some deliberation, and we would be very pleased to come back and cooperate with you in relationship between jobs in the United States and retirement as alternative options.

Mr. HUBBARD. Thank you.

Mr. Rogers?

Mr. ROGERS. He pretty well covered it, Mr. Chairman.

Mr. HUBBARD. If the amendment you suggest on page 15 is adopted, would the United States and the Panamanian nationals in the canal area be able to bargain in the same unit or would they still have to be in separate units?

Mr. KOCZAK. We believe that given the existing units and the determination which probably would be made by the Board that large numbers-there might be three types of units, some might be separate, some would be combined-this probably is the situationthere would probably be exclusively Panamanian and some exclusively United States and in some areas mixed units. It would determine really on the community of interest, and we should anticipate in advance on what board that would have to make a decision-well, I do not think we can say in advance, we are not trying to say whether you legislate in advance whether they should be in separate or in the same unit.

What we are saying is that the standard concept, standard principle of community interest versus conflict of interest should be criteria which would determine the nature of the unit. That is true even now in the United States. There are units which are not allowed to exist even under title VII. It is not a unique problem. It does not arise in Panama. It is a situation in the United States right now in labor-management relations.

Mr. HUBBARD. Do you support the request, made to the subcommittee by Panamanian employees who might immigrate to the United States, under the terms of implementing legislation, that they be allowed to compete for jobs in the Federal service?

Mr. KOCZAK. We think that that was one of the oversights in the treaty. Inasmuch as these persons were in American territory and if they are given the right to immigrate as a part of the treaty, it certainly appears that some kind of arrangement should be made that they can, if they are qualified, that they have the same right to compete as any other alien resident in the United States.

The issue is really very complex and it has been held by the Supreme Court that "Aliens *** United States has the right to a

Federal job cannot be denied the right of employment by the Federal Government," and so on.

To the extent that persons feel that the territory of the Canal Zone was under American sovereignty and they were on American jurisdiction and born there in many cases, it would appear that they should certainly have at least the same rights as a person who has never or who had not been born in the United States, immigrated in the United States, who was an alien. I think they should have the same rights as any resident alien of the United States who was qualified and applies for a job.

Mr. HUBBARD. Congressman Carney.

Mr. CARNEY. Mr. Chairman, you covered the one question I was concerned about and that was Panamanians who are attempting to come to the United States. There were several Panamanians who work for the Canal Zone, who have expressed their desire to come here almost out of fright, I think, of going back into the Panamanian economy and some have concerns about their physical and mental well-being. I would have to say that I certainly share the same concerns that you expressed today, not only through American citizens and their ability to come back and find alternative employment, but for the Panamanians who so nobly served us as employees of the Panama Canal Company.

I think today is a time where we are changing our laws so we do not put people out to pasture. Unfortunately, some of the ramifications of the Panama Canal are going to prematurely put people out to pasture from the work force. I see you have that concern and I would like to express the fact that I am concerned as well. I think perhaps we could work to mend that problem that we have through legislation.

Thank you very much.

Mr. HUBBARD. Other questions?

Thank you very much, Mr. Koczak and Mr. Rogers.

I think the subcommittee shares your concerns.

Mr. KOCZAK. Thank you very much.

Mr. Blaylock, our president, is in St. Louis. He would have testified himself, but he was not in town.

Mr. HUBBARD. We appreciate your patience. We really intended to hear you earlier, but we had a Senator here and it took more time than we anticipated.

We again thank you.

Now, one last witness, John Washburn, former legal adviser in the Office of the Department of State.

Could you capsulize your comments with the understanding that your prepared statement will be in the record and knowing that time is a problem for some of us who have another hearing to attend at 1 o'clock.

Thank you, Mr. Washburn.

STATEMENT OF JOHN N. WASHBURN, ATTORNEY

Mr. WASHBURN. I certainly will do that on the understanding that the whole statement is to be in the record. I will be delighted just to summarize.

[The prepared statement follows:]