Brought Before:

The U.S. National Administrative Office of
the United States Department of Labor

Researched by: R. Leticia Cuevas
January 21, 1995

Glossary

Introduction

Mexico's International Labor Obligations

Questions Presented by the National Administrative Office

1. Formation, Organization and Conduct of Business by Union

Legal Framework
Formation of a Labor Union
Labor Union Registration
Labor Union Registration Denial
Analysis of Registration Denial
Available Remedy
Cancellation

Requirements for Recognition of a Union as Bargaining Representative

Available Remedy

Employer's Obligations with Respect to Union Demand for Recognition

Remedy to Compel Employer to Enter into a Collective Labor Agreement
Previously Executed Collective Labor Agreement
Special Procedure to Establish Majority
Strike: Requirements for Legality and the Majority Issue
Procedure to Determine Strike Majority
Recount Procedure
Inexistence of Strike Declared by the Conciliation and Arbitration Boards

Frequency of Elections for Union Representation

Employees Seeking to Obtain Representation by a Different Union

The Exclusion Clause

2. Internal Union Operations

Rules and Procedures Governing the Conduct of Internal Union Affairs

Obligations
Dissolution
Federations and Confederations
The Labor Union By-Laws
Membership
Member Rights
Assemblies

Internal Union Elections

Removal from Office
The Commission of Vigilance
The Commission of Honor and Justice
Sanctions

3. Remedies and Enforcement

For Employer Interference with Right of Freedom of Association and Right to Organize

Unjustified Dismissals
Burden of Proof
Statute of Limitations
Demotions
Suspension from Work

Legal Remedies to Challenge an Employer or Labor Union interfering with Right of Freedom of Association or Right to Organize for Violations not Resulting in Dismissal, Suspension, or Similar Actions

Legal Remedies available to a Union acting on Behalf of its Members to Challenge Dismissals, Suspensions, or Similar Actions

Union Registration and Recognition Requirements to Pursue Remedies

Effectiveness of Remedies Provided by: The Registrar of Associations

Labor Inspectors
Office of the Procurator for Labor Defense
The Amparo Process

Maquiladoras

APPENDIX A:The Collective Labor Agreement

APPENDIX B: The Law-Contract

APPENDIX C: Modifications of Collective Labor Agreements and Law-Contracts

APPENDIX D: Strikes and Statistical Data

APPENDIX E: Subject Matter Jurisdiction and Territorial Jurisdiction

APPENDIX F: Sample Petition for Labor Inspectors

APPENDIX G: Liability and Sanctions

END NOTES

Action: The right of persons to request that the judicial authority decide their substantive rights.

Actuary: Under the FLL, actuaries are a part of the legal personnel appointed to the Labor Boards. They carry-out the required tasks of the Board which include notifications and recording of the facts in line with their duties, and can be compared with U.S. court clerks. See Articles 625, 626, 636, 640, 644, 645-I, and 646.

Adjudicate: To grant, give, or award.

Admission Clause: A clause which may be found in collective contracts or law-contracts wherein the labor union has a right to propose members of the union. Consequently, the employer has a duty to admit only those workers who are members of the union, in accordance with Article 395, first paragraph.

Amparo: A process often referred to as a trial where the constitutionality of laws, and violations to the Constitution and Regulations are challenged and resolved. A writ of relief.

Arbitration: Faculty of the Labor authority to decide.

Award: Decision dictated by the jurisdictional Labor authority.

Burden of Proof: Governed by Article 784, in order to gain knowledge of certain facts, the burden of proof is lifted from the worker when the Board employs other means, such as requiring an employer to disclose documents which are mandatory to preserve in the company.

By-laws, Labor Union: As provided for by Article 359, these are the autonomous regulations subject to the legal framework of Article 371.

Call for Strike: Included in a petition to an employer when there is failure to execute a collective contract, or obtain its revision per Article 450, II, or when the collective labor contract has been breached by the employer, according to Section IV of the same provision.

Cancellation: Invalidation of a former Labor act or authorization.

Cause: Motive or reason to rescind the work relationship, stipulated in Article 47.

Celebration: The execution or conclusion of a Labor contract.

Coalition: A temporary agreement among a group of workers or employers in defense of their common interests, per Article 355. Labor unions are permanent coalitions for the purpose of strike, as stipulated in Article 441.

Collective Interests: The general interests of a group or a class of people.

Collective Labor Contract: A convention celebrated between one or several labor unions and one or several employers, or one or several employer unions to establish the conditions under which work is to be performed in one or more companies or establishments. See Article 386.

Collegiate Circuit Tribunals: As provided by Article 158, first paragraph, under the Third Title, Direct Amparos Before the Circuit Collegiate Tribunals, Chapter I, General Provisions of the Amparo Law, they are the proper forum to bring direct amparos, under the terms established by Constitutional Article 107, Sections V and VI, proceeding against final decisions or awards or resolutions which put an end to the trial, dictated by judicial, administrative, or labor tribunals, where no other ordinary recourse is offered through which the decisions can be modified or revoked, whether the violation is committed in them or which, if committed during the proceeding, it affects the defenses of the claimant and transcends to the result of the decision, and for violations to guarantees committed in the same decisions, awards or resolutions mentioned. Article 44, under Chapter IV, Circuit Collegiate Tribunals, of the Organic Law of the Judicial Power of the Federation, establishes that with the exceptions in Articles 11, 24, 25, 26 and 27 of the same Law, the Collegiate Circuit Tribunals are competent to hear: "I. Direct amparos against final decisions or awards, or against resolutions which put an end to the trial, for violations committed in them or in the course of the proceeding when it involves: . . . d) In labor matters, awards or resolutions dictated by the boards or federal or local labor tribunals; II.-IX." Chapter VIII of the same Law, covers the territorial division of the distribution of the Judicial Power. Article 79 establishes that the territory of the Republic is divided into the number of circuits determined by the Supreme Court of Justice, en banc, indicating the territorial limitations of each. Article 80 explains that each of the Circuits comprises the judicial districts whose number and territorial limits are also set by the Supreme Court, en banc. Finally, under the Organic Law, Article 81 indicates that in each of the circuits, the number, the specialty and the territorial limitations of the Circuit Collegiate and Unitary Tribunals, as well as District Courts, which includes at least one in every judicial district, are to be determined by the Supreme Court. In addition, The Federal Code for Civil Procedures, First Book, General Provisions, Second Title, Judicial Authorities, Chapter I, First Section, Subject Matter Competence, stipulates in Article 20, that the Circuit Tribunals will hear, in the second instance, the matters pertaining to District Court jurisdiction. The Supreme Court of Justice, en banc, accorded in January, 1994, that the territory of the Republic be divided into twenty-three circuits with each of the circuits comprised of Circuit Collegiate and Unitary Tribunals, as well as District Courts.

Commission of Vigilance, Labor Union: Examines the irregularities brought by the Executive Committee or by the members of the union for non-compliance of the by-laws or the resolutions adopted in the assemblies.

Commission of Honor and Justice, Labor Union: The Commission hears the accusations brought by the Executive Committee, or by the members of the labor union against any member for conduct that is contrary to union probity, morality, or ethics.

Competence: Faculty granted by Law to a jurisdictional organ to hear a case.

Conflicts, Individual Labor: Where only the personal rights and the interest of a determined worker are affected.

Conflicts, Collective Labor: Where the rights and interests of a group or a class of persons are affected.

Continuous Shift: The uninterrupted hours within which work is performed as regulated under Articles 63, 64 and 70.

Contract: Mutual promises which create, or transfer rights and obligations. Article 1793 of the Civil Code for the Federal District defines it as a convention by virtue of which a right or an obligation arises or is transferred.

Convention: Meeting of the minds. Article 1792 of the Civil Code for the Federal District defines it as an agreement between two or more persons destined to create, transfer, modify or extinguish an obligation.

Company, Labor Union: As provided by Article 360, Section II, a labor union formed by workers who render services within the same company.

Day Shift: Work performed within the hours of six in the morning and eight in the evening.

Defer: To adjourn a hearing or a case.

Defense, Procurator's Office for Labor: Sections I-III of Article 530, enumerate the functions of the Office which are to represent the workers and their labor unions before any authority or advise them, when they so petition, over matters related to the application of labor laws. They can promote ordinary and extraordinary recourses to defend the worker and the labor union. They can also provide the parties with amicable solutions to their conflicts and certify the results in reports.

Deposit: Delivery of the collective contract, or the internal work regulation to the competent Labor authority, as provided for in Articles 390 and 425, as a requirement for validity.

District Courts: The Federal Code for Civil Procedure, (see above for Circuit tribunals) under Article 19, provides that their subject matter jurisdiction is established by the Organic Law of the Judicial Power of the Federation. Article 53, under Chapter V, District Courts, of the Organic Law dictates that the District Judges shall hear the cases on Labor subject matter concerning: "I. The amparo proceeding promoted according to Section VII of Constitutional Article 107, against acts by judicial authority in controversies which arise from the application of federal or local laws, when the legality or subsistence of an act by a labor authority, or of a proceeding followed by the labor authorities, must be decided; II. The amparo proceedings promoted against laws and other provisions of general observance in labor matter, under the terms of the Amparo Law; III. The amparo proceedings promoted under labor subject matter against acts of authority, other than judicial authority; and IV. The amparos promoted against acts by labor tribunals executed during or outside a trial, or after its conclusion which affect persons who are otherwise not judicially involved in the process. Article 114, Sections 1-VI, under the Second Title, Amparo Before the District Courts, of the Amparo Law governs the cases where an indirect amparo may be brought.

Ejecutoria: Judgment. A judicial document containing a decision issued by the Supreme Court of Justice or the Circuit Collegiate Tribunals which generally does not offer a recourse or appeal upon issuance. Subject to Articles 83, Section V, and 84, Section III of the Amparo Law, the decisions issued by the Circuit Collegiate Tribunals can be reviewed by the Supreme Court of Justice when they concern the Constitutionality of federal or local laws, international treaties, regulations issued by the President of the Republic, subject to Article 89, Section I of the Constitution, and local law regulation issued by the governors of the States, or when they establish a direct interpretation of a Constitutional precept. The recourse, however, is limited, exclusively, to Constitutional issues and by no means include any other.

Ejecutoriada: An executed decision.

Exception: The defense available to the defendant. A demurrer. It can also be compared to a motion to dismiss.

Exclusion Clause: A clause which may be found in collective labor contracts or law-contracts wherein the employer has a duty to separate from work the members reported by the labor union to the employer as having withdrawn from or expelled by the labor union. See Article 395, final paragraph.

Expert Witness: Persons who possess a considerable amount of knowledge in a science, art, or activity, whether professional or practical, which can enlighten a judge or tribunal regarding concrete facts of the field pertaining to a matter.

Extrajudicial: A settlement made outside the judicial process.

General Minimum Salary: As indicated by Article 91, it may be generally applicable to one or several geographic areas which may extend to one or more federal entities, or professional for a determined branch of economic activity, or for professions, occupations or specialized work within one or several geographic areas. Article 92 stipulates that the general minimum salaries are applicable to all the workers of [a] determined geographic area(s) notwithstanding the branches of economic activity, or professions, occupations or specialized work.

Holder of Collective Labor Contract: The labor union which has succeeded in obtaining a majority of workers through declaration by the CAB of the loss of majority of a previous holder. See Article 389.

Home-based Work: The work performed for an employer in the home of the worker, or any other place chosen by the worker which is unsupervised and where the worker is not under an employer's immediate direction .See Article 311.

Illegal: Unlawful.

Illicit Strike: An unlawful temporary work suspension. See Article 445.

Indemnification: Payment stipulated by Law.

Individual Labor Contract: The contract through which one person is obliged to render personal subordinated services to another in exchange for the payment of a salary. See Article 20.

Industrial, Labor Union: According to Article 360, Section III, a labor union formed by the workers who render services in two or more companies of the same industrial branch.

Injury: The damages which result from the violation of Labor rights.

Internal Work Regulation: Body of rules established to regulate the manner in which work is to be performed. See Articles 422-425.

Interpretation, Judicial: A preliminary clarification of the meaning of a law to enable its correct application by the jurisdictional organ in a process. When it is issued by a supreme or higher tribunal, it may become jurisprudence under certain conditions.

Inspection, Labor: The functions of this Labor authority are governed by Article 540, Sections I-V. They include monitoring of labor law compliance, providing technical assistance and informing workers and employers over effective compliance of labor laws; alerting labor authorities regarding labor omissions and violations observed in work-sites, conducting studies and obtaining the information required by Labor authorities, as well as any other which is necessary to obtain harmony in worker-employer relations, and other additional functions conferred by the laws.

Juridical act: The externalization of will or volition producing legal consequences.

Juridical fact: Human conduct or natural occurrences which produce legal consequences and which do not depend on the will of persons.

Juridical Norm: Rule of conduct.

Jurisdiction: Sovereign function of the State which oversees litigation or controversies.

Jurisdiction, federal: Faculty granted by Law to the jurisdictional organs of the Federation to hear a case.

Jurisdiction, local: Faculty granted by Law to jurisdictional organs in a State Entity to hear a case.

Jurisdictional Organ: A State organ which resolves a controversy.

Jurisprudence: Article 192, under the Fourth Title, Jurisprudence of the Supreme Court and of the Circuit Collegiate Tribunals, of the Amparo Law provides that five ejecutorias which are not interrupted by another to the contrary, issued by the Supreme Court of Justice as a legislative body, and approved by at least fourteen Ministers result in jurisprudence. The ejecutorias issued by the Salas also result in jurisprudence when five decisions have been issued with the same reasoning, and no contradicting ejecutoria has interrupted the reasoning sequence, provided that they are approved by four Ministers. Jurisprudence also results from the resolution which decides over a contradictory thesis issued by either the Salas or the Collegiate Tribunals A thesis of jurisprudence has the force of a legal provision. Consequently, when issued by the Supreme Court of Justice it is binding on the Court itself, as well as on all lower courts: the Circuit Collegiate Tribunals, the Circuit Unitary Tribunals, the District Courts, military tribunals or judicial of the common order of the States and of the Federal District, and federal or local administrative and labor tribunals. Article 193 states that the ejecutorias issued by the Collegiate Tribunals operate the same way, except that the votes to approve them have to be unanimous. Their jurisprudence is binding on the Tribunals themselves, the Circuit Unitary Tribunals, and on the District Courts.

Justified Strike: One motivated by an employer, per Article 446.

Labor Union: An association of workers or employers constituted to study, advance and defend their common interests, per Article 356.

Lack of Probity: Dishonesty or lack of integrity. By employer, see Article 51, Section II. By worker, see Article 47, Section II.

Legal Benefits: The minimum benefits to which the workers are legally entitled, and which include vacation periods, annual bonuses and seniority premiums.

Legal Duty: Obligation to conduct oneself in accordance with a legal norm.

Legal Offense: Act or omission which is sanctioned by the penal laws. It can also be defined as an anti-juridical conduct which contains the characteristics of typicality and culpability which produce harm.

Legally existent strike: As provided by Article 444, it is a strike which satisfies the legal requirements and has the objectives indicated in Article 450.

Legally inexistent strike: A strike which does not meet the requirements of Article 459, nor the objectives indicated by Article 450.

Legislation: A body of governing laws pertaining to a subject matter.

Litigation: A qualified conflict of interests with judicial transcendence.

Lost Wages: Payment due for a cause motivated by an employer.

Minimum Salary: As provided by Article 90, it is the least cash amount payable to a worker for the services rendered during a work-shift. Minimum salary must be adequate enough to enable the head of family to satisfy the normal basic, social and cultural needs, as well as to provide the children with a legally required education.

Miscellaneous Occupations, Labor Union: Formed by the workers of diverse professions. These labor unions can only be constituted when in a municipality, the number of workers of the same profession is under twenty.

Mixed Commission: The persons designated by the workers and employer which are to carry-out certain functions in the interests of both factors of production.

Mixed Shift: The work schedule which comprises the hours of day and night shifts.

National Industrial Labor Union: As defined by Article 360, Section IV, formed by workers who render services in one or several companies of the same industry established in two or more Federal Entities.

Negative Prescription: A means through which an obligation can be extinguished by the mere passage of time.

Night Shift: The work schedule between the hours of eight in the evening and six in the morning.

Norm: Rule of conduct.

Notification: Hand delivery of a summons requiring a personal appearance before the issuing forum.

Obligatory: Binding, forceful.

Originating Source: Primary source from which something arises for the first time.

Over-time: The extra hours worked due to an extension of a company's normal activity, governed by Articles 66-68.

Parties: The persons who have a legitimate interest in a trial or matter.

Peritos: See expert witness.

Permanent Worker: The person who has a work relation for an indefinite period.

Petition: A written document containing a requirement to the Boards or to an employer.

Positive Prescription: A means through which rights can be acquired by the mere passage of time.

Preferential Rights: A preferential order provided by Article 154, through which workers may compete for vacancies or promotions to newly created vacancies, following an order for competition.

Prescription: A means through which rights may be acquired or obligations may be extinguished by the mere passage of time. See Statute of Limitations.

Procedural moment: Part of the legal process.

Professional association: Under Mexican Law, it is a union of workers or employers which studies, advances and defends their common interests. See Article 356.

Recognition of labor union, Employer: The manifestation of acceptance by an employer of a labor union as the bargaining representative of the workers arising from the execution of a collective labor contract.

Recognition of labor union, Official: As provided by Article 368, the registration granted by the STPS or by the Local CAB's enables a labor union to act before all FLL authorities. Its authorized registration also enables a labor union to exercise its legal rights as a fictitious person.

Recount: Offered as evidence where objections to the majority results through worker voting has been made. See Articles 895, III, and 931.

Registration, Labor Union: Under the FLL, it is the legal requirement mandated by Article 365 which provides the labor union official recognition, according to Article 368, to represent the workers and defend their interests, per Article 375, and juridical capacity to exercise internal rights, as accorded by Article 374.

Remedy: Application of measures to repair , compensate or amend an injury.

Relief: Refers to that which the worker seeks to obtain through the lawsuit, and or the award given by the CAB.

Require: To ask or petition.

Rescission: To annul or make an act or contract ineffective.

Responsibility: Liability. Worker liability is limited to Article 32. Employer Liability is subject to the following Articles: 13. 15. 41. 203, 260 and 281, as well as to the Responsibility and Sanctions for violations to the Labor laws. Labor authority liability is subject to Articles: 708, 710 and 848, and to the Responsibility and Sanctions imposed by Articles 1003 and 1005 of the FLL.

Responsible Authority: Per Article 11, under the First Book of the Amparo in General, First Title, General Rules, Chapter II, Capacity and Personality, of the Amparo Law, it is one who dictates, promulgates, publishes, orders, executes or attempts to execute the challenged law or act.

Revision, Amparo: Per Article 83, under the First Title, Chapter XI, Recourses, of the Amparo Law, a recourse promoted in a higher instance to challenge the revocation, modification, or confirmation of the decision or resolution.

Salary: Payment made by an employer for services rendered by an employee. See Articles 82-89.

Sanction: Punishment or penalty. Under the FLL, sanctions are covered in Title Sixteen by Articles 992-1010 for violations to labor laws. In 1986, the penal sanctions and fines were increased in Article 1004 regarding violations to the minimum salary.

Social Law: A part or branch of Law regulating the laws which protect the economically disadvantaged.

Social Security: Article 2, under the First Title, General Provisions, of the Social Security Law states its objectives: "...to guarantee human right to health, to medical assistance, to the protection of the necessary means for subsistence and social services for the individual and collective welfare."

Solidarity strike: A strike in support of another strike which has one of the objectives of Article 450.

Subordinate Work, personal: Rendered by a worker under the direction and dependency of the employer.

Suit: The document containing the relief requested, the statement of facts and the applicable law which ground the action.

Summon: Notification of a party requiring appearance before its forum.

Support of a strike: A solidarity strike.

Supreme Court of Justice: Article 18 of the Federal Code for Civil Procedure (see above for Circuit Collegiate Tribunals and District Courts) provides that the matters under the jurisdiction of the Supreme Court, except where it concerns amparo proceedings, are always decided in one instance, en banc. The remaining matters, absent a special law, shall be decided by the District Courts, in the first instance, and as appeal, before the Circuit Tribunals under the terms where a recourse is available, in accordance with the provisions of the Code. If a matter involving local jurisdiction, or a federal tribunal of specialized organization, attracts the interest of the Federation, regardless of the way in which it arises, the competence of the court hearing the case shall cease, and is to remit the matter to the Supreme Court, or to the District Court, according to the nature of the interest. Conversely, when the Federation no longer has an interest in a case, or where it has definitely resolved the question in it, the jurisdiction of the ordinary Federation tribunals shall cease. Article 11, Chapter II, Supreme Court of Justice, of the Organic Law of the Judicial Power of the Federation indicates in Sections I-XV, the matters which it is to resolve as a plenary body. Aside from the latter function, the Supreme Court also functions in Chambers, or Salas. Article 27, Sections I-XI, lists the matters under the competence of the Fourth which corresponds to Labor.

Suspension from Work: A disciplinary measure brought about by a violation to the Internal Work Regulation. Article 423, Section X, stipulates that the IWR is to include the disciplinary measures and the procedure for application. However, suspension from work is not to exceed eight days and the worker has a right to be heard before imposition of the sanction. Sometimes a labor union, as agreed to in a collective labor contract, may require the employer to apply a disciplinary measure for violation to the union by-laws. If the corrective measure is in the form of a suspension from work, it is often stipulated that such measure is not to interfere with the company's routine operation, meaning that where several workers violated the union by-laws, the labor union will not require the employer to sanction workers of equal category at the same time.

Statute: Rule or legal norm.

Statutes, labor union: By-laws; constitutive norms or rules through which fictitious persons govern their internal affairs.

Statute of Limitations: See prescription.

Strike: Temporary work suspension carried out by a coalition of workers. See Article 440.

Strike, full blown: Suspension of work manifested by the hanging of a strike flag.

Structure: Organization.

Temporary Worker: A worker who renders services to an employer for a specified task or period, and whose work relation is governed by Articles 36 and 37.

Termination: The dissolution of a work relation or the expiration of a labor contract. See Articles 401, 421, and 433-439. It also refers to the termination of the work relation declared by the CAB, per Article 934, as a sanction to an unlawful strike, described in Article 445.

Third Interested Party: According to Article 690, it refers to persons who tend to be affected by the resolution of a conflict, and who may intervene in it after proving their judicial interest or when, at the discretion of the Board, they are summoned to appear.

Third Affected Party: Under the Amparo Law, Chapter II, Capacity and Personality, Article 5, Section III, provides the circumstances under which a party may be considered one: "...a) An opponent of the affected party when the challenged act arises from a trial or a controversy other than a penal matter, or any of the parties when the amparo is promoted by a person who would otherwise not have a judicial interest; b) The affected party or persons, who according to Law, have a right to damages or to demand civil liability which arise from a legal offense...; c) The person or persons who have promoted in their favor the act being challenged when it involves measures declared by authorities other than judicial or labor; or who, without having promoted, have a direct interest in preserving the challenged act.

Trade Labor Union: As defined by Article 360, Section I, consists of workers of the same profession, occupation or specialty.

Trust Worker: A person whose job involves direction, inspection, observance, and investigation when of a general character, as well as personal services for the employer. See Article 9.

Unjustified Cause: A rescission of the work relation by the employer without a legal foundation, particularly those enumerated by Article 47 which exonerate the employer from liability.

Unjustified Failure or Fault: Liability for an inexcusable act by either the worker or employer. See Articles 133, Sections I-XI, 135, Sections I-X, 47, Sections I-XV, and 51, Sections I-IX.

Unlawful strike: As provided for by Article 445, when the workers violently act against persons or things; and during war, when the workers belong to establishments or services dependent on Government

Work Conditions: The stipulations found in a labor contract agreed to by the worker and employer.

Work Relation: Rendering of a personal, subordinated service in exchange for the payment of a salary. See Article 20.

Work Shift: Comprises the time in which a worker is at the disposal of an employer in performance of the work, governed by Articles 58-68.

Work Suspension: A work stoppage; a temporary work interruption. Collective work suspensions are governed by Articles 427-432. When the work suspension is due to a strike, it refers to the suspension of the effects of the work relation, regulated by Articles 443, 447 and 451.

Note: All article numbers cited here and throughout the Report pertain to the Federal Labor Law unless otherwise indicated.

Introduction

This Report is an analysis of submissions Nos. 940003 and 940004, brought before the United States National Administrative Office (US NAO) of the US Department of Labor. Examined, herein, are the substantive and procedural aspects of the Mexican Labor Law, including the interpretations given by the higher courts on these and analogous issues. Because the Labor amparo is a crucial "recourse" to unfavorable resolutions by Labor authorities, it is discussed in context with the questions from the US NAO.

The Report was designed to answer the specific "Questions Presented" by the US NAO and provide further significant information.

The Appendix contains more material related to the issues in this Report. Its volume made it necessary to incorporate it in that section to avoid interruption of the flow of questions and answers. Therefore, additional Federal Labor Law (FLL) regulation and jurisprudence on collective labor agreements, law-contracts, and the procedure for their modification, as well as complementing statistics from the Secretariat of Labor and Social Welfare (STPS) can be found there. Also included are a jurisdiction table and chart to abridge comprehension of the distribution of competence by the Labor Boards according to conflicts, and a liability and sanctions table for violations to the FLL.

Mexico's International Labor Obligations

Mexico's international obligation to honor the North American Agreement on Labor Cooperation (NAALC), the labor side agreement to the North American Free Trade Agreement (NAFTA), following the principle of pacta sunt servanda, is apparently fulfilled through Article 133 of the Mexican Constitution. The Constitutional mandate establishes that international treaties in harmony with the Constitution, celebrated by the President and approved by the Senate, are the Supreme Law of the Union. However, Mexico's international Labor obligations concerning the International Labor Organization (ILO.) Conventions and the NAFTA's NAALC need to be distinguished in terms of the manner in which effective compliance is evaluated.

Under the I.L.O., the Member State's initial obligation is to incorporate the contents of the convention into domestic law and national practice, if not previously included, in accordance with Article 19.5.d) of the I.L.O. Constitution. This article establishes that immediately after communicating the formal ratification of a convention, the Member State must adopt, "...the necessary measures to effectively enforce the provisions of the convention."⁽¹⁾ After this is done, the Member State can show through either Detailed or Compliance Reports, prepared by its own government, the ways in which it has effectively complied with the Convention's articles as required by Article 22 of the I.L.O. Constitution.⁽²⁾

Comparatively, under the NAALC, when a submission is brought to the NAO forum, it not only examines that the Labor Principles enumerated in Annex I of the NAALC are found in the Party's domestic labor law, but that a Party has indeed promoted compliance of, and effectively enforced its labor laws, as provided in Part II, Article 3, Paragraph 3, subparagraphs (a) - (g), Part Two.

Consequently, the issue of whether Mexico promoted compliance with, and effectively enforced its domestic Labor laws is to be determined after examining whether its government omitted to monitor compliance or to investigate suspected violations. As provided in Part II, Article 3, Paragraph 1, subparagraphs (b), (f) and (g), Obligations of the NAALC, they include: on-site inspections; providing or encouraging mediation, conciliation and arbitration services; or a timely initiation of the proceedings that impose the proper sanctions or remedies for violations of the labor law, State Executives are mandated by Constitutional Article 120 to internally publish and enforce federal laws. Therefore, the Federal Labor Law, a federal statute issued by Congress, is to be published and enforced by the Local Governments. Moreover, the President of Mexico has the obligation to monitor compliance on a federal level as is enunciated in Section I of Article 89: To promulgate and execute the laws from Congress, and ensure their effective observation in the administrative setting."

The obligation to publish federal laws on both National and State levels is not difficult to establish. Mexican laws are published in the Diario Oficial de la Federación and in each State's official newspaper. However, the essence of Constitutional Articles 89 and 120 is the obligation to monitor compliance of the laws created by Congress on a national level and in a uniform manner. The extent of satisfying that obligation can be hard to determine. There is a need to examine concrete cases that can show how these laws are enforced by the Federal and State labor authorities.

Government Enforcement Action, Article 3, Part II of the NAALC requires that a Party promote compliance and effectively enforce its labor law. Mexico's substantive and procedural Labor laws are governed by the Constitution. Therefore, while the principles of legality and judicial security are constitutionally guaranteed by Articles 14 and 16, the amparo is the specific mechanism to remedy violations committed by governmental authorities. The weight of such mechanism can be understood as the branch of Mexican law through which other branches of its system are checked and balanced to ensure effective enforcement of Constitutional rights and laws. The Right of Amparo, governed by Articles 103 and 107 of the Mexican Constitution and regulated under amparo law, is the fundamental measure through which compliance of all Constitutional laws is promoted.⁽³⁾ It is also the means through which these laws are effectively enforced when authorities violate any of the Constitutional guarantees.⁽⁴⁾

The issues brought before the US NAO concerning Constitutional violations by governmental authorities, can be resolved through proper administrative and judicial processes. If, after exhausting these means, the injured parties are unable to obtain a favorable outcome, an amparo can be promoted to seek relief. The amparo, however, should be regarded as the last resort against violations to individual rights.

Questions Presented by the US National Administrative Office

1. Formation, Organization and Conduct of Business by Unions:

What are the procedures and requirements for formation of a union and its registration?

Legal Framework:

Article 9 of the Constitution grants all individuals freedom of association. Article 28 of the Constitution stipulates that associations of workers are not monopolies when they are formed to protect their own interests. The right to associate and to form unions is granted through Article 123, Part A, Section XVI. Under the FLL Seventh Title: Collective Labor Relations, Chapter I on Coalitions, Articles 354 and 355, and Chapter II on Unions, Federations, and Confederations. Articles 356 through 385 of Chapter II regulate the procedure for union registration and union obligations.

The FLL regulates the right of freedom of association through Articles 354, 357 and 358. The essence of the freedom of association is founded on Article 357: "...workers and employers have the right to form unions without having to obtain prior authorization..."; and Article 358 "...that no one can be compelled to become a member or not." The last paragraph of Article 358 warns that any stipulation establishing a conventional fine in case of separation from the union, or which in any way changes the meaning of the provision found in the preceding paragraph, will be disregarded. If the latter is correctly interpreted, then why is the exclusion clause applied when a union member resigns from the labor union and is, consequently, separated from work? As is later discussed, the Law recognizes the exclusion clause through Article 395, but it does not impose it on the parties to Collective Labor Agreements (CLAs) or Law-Contracts (LCs), rather, it grants the parties freedom to negotiate it. Because the Law acknowledges competition by several labor unions to hold a CLA or administer an LC, the exclusion clause is applied to safeguard membership losses.⁽⁵⁾

Formation of a Labor Union:

In order to form a labor union, Article 364 requires at least twenty workers who are in active service in the company or establishment where the labor union seeks to represent them. Those whose work relation was rescinded are considered to be in active service as long as the rescission took place within a thirty-day period prior to the date in which the registration application is brought before the Conciliation and Arbitration Board (CAB) and the date in which it is granted. The following thesis exemplifies the importance of a direct work relation to meet the "active service" prerequisite:

Labor Unions. Registration inadmissible where the ordinary work relation does not exist. From the evidence submitted to the Federal Judge it can be established that the appellants⁽⁶⁾ did not show that they had been working directly, that is, autonomously with the companies with which they said to have been linked, and on the contrary, it was established that when they did work for the same, they did so under a proposal from and through the Unión de Estibadores y Jornaleros del Puerto de Veracruz, if they did not work directly, it is, undoubtedly, that they lacked the necessary autonomy to link themselves with the companies, aside from the fact that, given the sporadic nature of their services, the requirement of workers in active service, referred by article 364 of the Federal Labor Law is unfulfilled. Amparo en revisión⁽⁷⁾ número R.T. 173/81. Gregorio Rivera Morales y otros. 29 de septiembre de 1982. Tercera Parte. Primer Tribunal Colegiado en Materia de Trabajo del Primer Circuito. p. 156.

Labor Union Registration:

Labor unions are to register with the Labor authorities according to jurisdiction. Article 365 specifies that labor unions under federal jurisdiction will register with the STPS, while those under local, will do so with the local CABs. In addition, Article 365 requires that labor unions submit the following documents in duplicate, along with their application: I. Copy of the authorized articles of incorporation; II. A list indicating the number of members, their names and addresses along with the name(s) and address(es) of the employer(s), the companies or establishments with whom the members have a work relation; III. An authorized copy of the by-laws; and IV. A copy of the assembly minutes through which the Board of Directors was elected. The documents will also need to be authorized by the labor union's Secretary General, the Secretary of Organization, and the Secretary of Acts (minutes), except as otherwise indicated in the labor union by-laws.

Labor Union Registration Denial:

Under Article 366, a labor union may be denied registration: First, if the labor union's objective does not concur with Article 356: "an association of workers constituted for the study, advancement, or defense of their respective interests." Second, when the labor union is not constituted by, at least, twenty workers in active service as required by Article 364. Third, when the petitioners do not submit duly authorized documents required by Article 365.

Once the requirements have been met, registration may not be denied by any of the proper authorities. Alberto Trueba Urbina⁽⁸⁾ and Juan B. Climent Beltrán⁽⁹⁾ both agree that registration is not automatic at the end of the sixty-day period. At that time, the petitioners can require the CAB to resolve the labor union's registration, and if it does not do so within a three day period following the request, then it is assumed to have been granted and the CAB must issue a registration certificate.

Analysis of Registration Denial:

There have been misunderstandings regarding Section I of Article 366, as a basis for registration denial. While the section does not indicate that the text of Article 356 be transcribed on the application for registration, it does express that if the union lacks the objective, it is a basis for denial. Considering the petition is in writing, it would be wise to cite Article 356 to establish the objective. Notwithstanding this advise, even when a labor union does not expressly establish its objectives, the CAB should require the union to do so.⁽¹⁰⁾ In such cases, the principle of supplementing, or amending deficiencies is applicable. The Board, therefore, has a duty to supplement or correct any deficiencies found in petitions or suits brought before it, in accordance with Article 685, Title Fourteen, New Procedural Labor Law, Chapter I, Procedural Principles. The following decision is an exception to this rule:

LABOR UNIONS. CANNOT SUPPLEMENT DEFICIENCIES WHEN THEY CLAIM TITLE TO A COLLECTIVE CONTRACT.- When two or more labor unions demand the title to a collective labor contract, there is no legal possibility of supplementing the deficiencies of their complaint since the contending labor organizations find themselves with juridical equality and, therefore, it would be illegal to complement the deficiencies of one in detriment of the others. SEGUNDO TRIBUNAL COLEGIADO EN MATERIA DE TRABAJO DEL PRIMER CIRCUITO. Amparo directo. 1002/90.-Sindicato Nacional de Trabajadores de Aviación y Similares.-20 de abril de 1990.-Unanimidad de votos.-Ponente: César Esquinca Muñoa.-Secretaria: Guadalupe Madrigal Bueno.

A registration denial may also rest on failure to comply with the requirements of Article 365, and be justified by Article 366, Section III (although not a condition for denial) if the labor union does not register before the proper authority. Consider the following decision, brought to the Circuit Collegiate Tribunal for review:

LABOR UNIONS, THEIR REGISTRATION MUST BE PROCESSED BY COMPETENT LABOR AUTHORITY.- If, as stipulated by article 365 of the Federal Labor Law, there are a variety of requirements that must be met to request registration of a labor union, it is no less certain that after having satisfied the requirements, its registration must be processed by the competent labor authority, for to allow the contrary would mean that a labor union could register before any labor authority simply by presenting the documentation required by the legal precept, which is not legally possible. SEXTO TRIBUNAL COLEGIADO EN MATERIAL DE TRABAJO DEL PRIMER CIRCUITO. Amparo en revisión 456/90.-Sindicato Nacional de Trabajadores del Fideicomiso Fondo Nacional de Habitaciones Populares.-27 de junio de 1990.-Unanimidad de votos.-Ponente: J. Refugio Baeza.-Secretario: José Luis Martínez Luis.

Section III explicitly justifies denial of the registration when the petitioners do not submit the required documentation indicated by Article 365. However, unless a CAB is to be challenged through an amparo, its considerations for denial must not be obscure, i.e., it needs to specify the documents that the petitioner failed to submit as required by Article 365 in conjunction with Article 371.

Denial of a registration on the basis of the existence of a CLA held by a trade union whose members have joined another union requesting registration, is not one of the three conditions for denial expressed in Article 366 of the FLL . However, the following decision in an amparo under review, issued by the First Collegiate Tribunal on Labor Subject Matter of the First Circuit upheld the District Court's decision to deny it on such grounds.

REGISTRATION OF A TRADE UNION, DENIAL OF. If a labor union, exclusively formed by a group of workers in the same activity, is requesting registration, denial of its registration should not affect the workers since they have manifested to be members of the Labor Union, general holder of a collective labor contract governing in the company where they render services; considering that the labor union attempting to register cannot validly have the intent of complying with the inherent objective of trade unions, which is the study, advancement, and defense of the interests of the working conglomerate, because such ends have been previously obtained by the mentioned general Labor Union that has already been registered; notwithstanding the freedom of unionization and that a diversity of labor unions may compete for the collective pact, such competition can only be possible when those labor unions exist prior to the execution of the collective labor contract; and, in addition, because unionization creates a duty for workers to consolidate with the association in order to obtain the inherent objective of the labor organization, which, in this case, has been obtained by the general Labor Union legally constituted and registered, and to which the affected workers were timely admitted. Amparo en revisión 129/81. Alfonso Saucedo Ramírez y otros. 30 de abril de 1982. Unanimidad de votos. Ponente: José Martínez Delgado. Secretaria: Nilda R. Muñóz V.Informe 1982. Tercera Parte. Primer Tribunal Colegiado en Materia de Trabajo del Primer Circuito, p. 154.

According to the above thesis, a labor union was attempting to register under the same classification as the one holding a collective labor contract in the same workplace. In such a case, the labor union would be barred from registration due to a lack of union objectives indicated in Article 356, a condition for registration and the basis for denial as stipulated by Section I of Article 366.

On the same issue, Climent Beltrán points out that the following concept contains the reasoning behind a resolution issued by the Office of the Registrar of Associations of the STPS that on March 4, 1981 denied registration to the Sindicato Unificador Nacional de Mecánicos de Aviación:

Trade unions, during an initial phase of the union movement matched the simple organization of the companies and industries of the time, however, now, with industrial technology and economic development, such structures have become extended and complex; therefore, trade unions that individualize and minimize the impact of unionization are unjustified because although the pre-established labor unions must be respected at least, legally, it is not acceptable that others arise where there are labor unions representing a worker majority within a company because it would give way to a proliferation of smaller labor unions that would weaken the union force of organized workers in the companies, which enables them to widely and efficiently represent the workers' common interests, in accordance with the essential objective of labor unions.⁽¹¹⁾

Moreover, under such circumstances, if the members under the CLA are not a majority, and the CLA contains an exclusion clause, the workers who support an unregistered union risk application of the clause. According to Article 395, second paragraph, the exclusion clause is applicable if workers are separated by the employer at the request of the holder of the CLA.

On the other hand, if the members petitioning registration of a new labor union are a majority, the union controlling the CLA would, logically, be unable to apply the exclusion clause because, as indicated in Article 371, VII, f), the expulsion requires that the majority of the two-thirds of the total number of members of the labor union approve.

Notwithstanding the above, as long as the labor unions are under a different classification according to the rules for union control of the CLA, established by Article 388, under the Seventh Title, Collective Labor Relations, Chapter III, Collective Labor Agreement, and since the law has previously envisioned the existence of various unions within the same workplace, a union classified as a company union⁽¹²⁾ can have the objectives stipulated by Article 356 and rightfully coexist alongside a trade union in accordance with Articles 354, 357 and 358 of the FLL, which encompass the freedom of association and the right to form unions. While a CLA is in effect, should its holder lose majority status, the Board is to declare it, as established in Article 389 after it has been decided through the special procedure covered by Articles 892-899.

Despite the above, the Sixth Collegiate Tribunal on Labor Matters of the First Circuit did not find that the existence of another labor union to which members already belonged was a cause for denial. Apparently the decision did not focus on the issue of identical classification, which would make the unregistered union lack the objectives of Article 356, but it did solely on the causes for denial provided by Article 366.

LABOR UNION, REGISTRATION OF. IS NOT A CAUSE FOR DENIAL THE FACT THAT ITS MEMBERS BELONG TO ANOTHER UNION ORGANIZATION.- The fact that the members of the complainant organization appear as being part of another registered labor union with the same objective is not a cause for denial of registration; in the first place, because article 366 of the Federal Labor Law does not provide it as a motive for denial and, if on the contrary, its Section I establishes that it will not be registered in the cases where it precisely lacks the objective of the study, the advancement and the defense of the interests of those who are part of it; and secondly, as is held in the review judgment, the law does not prohibit workers from belonging to several labor unions within a same company. SEXTO TRIBUNAL COLEGIADO EN MATERIA DE TRABAJO DEL PRIMER CIRCUITO. Amparo en revisión 1086/89.-Benedicto Martínez Orozco y otros. -9 de marzo de 1990.- Unanimidad de votos.-Ponente: María del Rosario Mota Cienfuegos.-Secretaria: Idalia Peña Cristo.

Available Remedy:

The petitioners who are denied a labor union registration can promote an amparo to challenge a CAB administrative resolution where denial is based on other than the causes set out by Article 366. Any considerations declared by the STPS or the appropriate Board that are inconsistent with Sections I-III of Article 366 violate the freedom of association granted by Article 9 of the Constitution, as well as the freedom to associate and the right to form unions established in Article 123, Part A, Sections XVI, and XXII of the same, when workers are affected through employer retaliation, and Articles 354, 357 and 358 of the FLL.

Cancellation:

Article 369 specifies that labor union registrations are to be canceled only in the following cases: I. Dissolution; and II. Where the labor union lacks the legal requirements. If the latter conditions materialize, the CAB is to resolve the labor union's cancellation. However, Article 370 indicates that a labor union's dissolution, suspension or cancellation is not subject to an administrative resolution, which means that although its registration was administratively granted, their dissolution, suspension, or cancellation needs to be resolved through an ordinary proceeding covered by Articles 870 to 891.⁽¹³⁾

What are the procedures and requirements for recognition of a union as the bargaining representative?

One of the principal goals behind unionization is to obtain employer recognition as the bargaining representative through which a CLA can be negotiated. Accordingly, a labor union is enabled to provide its members with better working conditions than those established by Law.⁽¹⁴⁾

After proper registration (as mentioned above) and authorization of their registration before the STPS or Local CAB, labor unions are granted official recognition. It means that they are officially authorized to act before Labor authorities, as recognized by Article 368, and to legally represent their membership in accordance with Article 375.

EJECUTORIA.⁽¹⁵⁾ Labor unions, the consequence of failure to register. Article 365 of the Federal Labor Law indicates that labor unions shall register, an obligation, which—if unobserved— presupposes a sanction consistent in that the constituted association shall not validly act before any authority, in accordance with the provision in article 368 of the same law, interpreted a contrario sensu. Improcedencia 120/83.-Sindicato de Trabajadores de la Alianza Francesa de México,-13 de mayo de 1983.-Unanimidad de votos.-Ponente: César Esquinca Muñoa.

In the absence of another labor union and CLA, the official recognition, authorizes a labor union to request an employer to enter into a CLA provided, of course, there is an ongoing work relation between the employer and the workers in compliance with Articles 364 and 387.

Climent Beltrán stresses the requirements for entering into a CLA consistent with Articles 387 and 388. First, the labor union must be legally constituted, which means that the right to the CLA cannot be demanded by individual workers, regardless of their number, if they are not unionized, or if they fail to act through the union. Next, the labor union has to show its professional interest through at least two or more members who work in the company according to the decisions issued through direct amparo No. 3942/43 issued on November 4, 1943, and amparo No. 46/1955 resolved on March 12, 1956. The final requirement involves observance of the rules in Article 388 when several labor unions compete.⁽¹⁶⁾

There is also a question of whether the majority rule is applicable at this stage. Néstor De Buén believes that the majority requirement is not essential when the labor union is requiring the CLA. While the majority requirement originates a collective right, it does not come into play until after a strike has been called to compel the employer to sign the CLA.⁽¹⁷⁾ Later, under the strike proceedings, if any of the parties want to establish that the strike is non-existent, they can petition the CAB to declare the inexistence on the basis of Articles 451, Section II, and 929, when a minority supports the strike.

Available Remedy:

If the employer refuses to sign a CLA, a labor union, or a coalition of workers can petition the employer to do so with a call for strike, as the objective of Article 450, Section II. A strike of this nature is followed in the proceeding covered by Articles 920-938, under Title XIV, Procedural Labor Law, Chapter XX, Strike Proceedings of the FLL. Employer incompliance with a CLA also leads to a petition with a call for strike for breach, as stipulated in Section IV of Article 450.

What are an employer's obligations with respect to a union demand for recognition?

The answer to this question depends on whether or not an employer has already entered into a CLA, as well as whether or not other labor unions are competing for one. Another factor is the issue of whether a majority of workers favor the union that is to represent them.

Remedy to Compel Employer to Enter into a CLA:

When an employer refuses to sign the CLA, the labor union can petition the employer with a call for strike on the basis found in Article 450, Section II.

Because employers are compelled to enter into CLAs and their consent is subject to a sanction inherent in the workers' right to strike, Trueba Urbina believes that the principle of the autonomy of the parties is nonexistent in this branch of Law.⁽¹⁸⁾

Previously Executed CLA:

Article 389 establishes that a loss of the majority of workers declared by the CAB produces the loss of the CLA. Such determination is to be based on the rules of Article 388, Sections I-III, where several labor unions compete to hold the CLA, as follow: I. Where company unions or industry unions, or one or the other, simultaneously represent workers in the same concern, the collective labor agreement is to be entered into with the union that has the majority of workers within the company; II. Where several trade unions simultaneously represent workers, the collective agreement is to be entered into with the majority group representing the professions, as long as they agree. When this is not possible, each union is to enter into a collective agreement of their own according to the profession represented; and III. Where trade and company unions, or industry unions simultaneously represent workers, the first may enter into a collective labor contract for their profession, as long as the number of members is higher than the one for the workers of the same profession who are members of the company or industry unions.

Assuming, there is a CLA held by a first labor union, an employer does not have a duty to grant the second recognition unless, in accordance with Articles 388 and 389, the CAB has declared the loss of the majority by the first labor union. The declaration would enable the second labor union to claim the majority, as well as employer recognition as bargaining representative.

The rules in Article 388 plainly suggest that the Law accepts union plurality, i.e., the possibility of more than one labor union competing in the same workplace and, according to Néstor de Buén, even the possibility of more than one CLA held by several types of labor unions. However, as De Buén points out, specialty and majority are the principal signs to determine which of the unions will hold the CLA.⁽¹⁹⁾ Therefore, when such majorities are at issue, they can be resolved through the Special Proceeding, found under Title Fourteen, Procedural Labor Law, Chapter XVIII, Articles 892-89, designed to expeditiously resolve them.

Under the above assumption, Climent Beltrán states the reasons why the application of Article 387 is limited. To start, a strike would be unfair to an employer who has already complied with the obligation mandated. Furthermore, a strike under those circumstances would lack the objectives of Article 450, and would make it legally inexistent, according to Article 459, Section II, since it would be motivated by an inter-union struggle that is not an objective of the strike. As a result, an outside labor union, is not legitimized to petition an employer for a CLA with a call for strike, which, in any case, an employer is legally prevented from entering into.⁽²⁰⁾ Climent Beltrán further explains that, ". . .when a labor union holds a CLA, or administers an LC, where either are in effect, and a coalition competes for either one, petitioning the employer with a call for strike, such coalition lacks legal standing to do so. Only the labor union, as a permanent coalition, can represent the professional interest of the workers who are at the service of a company in the exercise of their collective actions and the right to strike. . ."⁽²¹⁾ Consequently, as mentioned earlier, whenever labor unions compete for CLAs, the proper procedure to establish majority is through the Special, not the Strike proceedings. The latter is reserved to compel an employer who has not previously executed a CLA, but refuses to do so.

Article 923, found under Strike Proceedings, cautions that a petition with a call for strike presented to the CAB will be rejected unless the requirements listed in Article 920 are met. The rejection will also apply when it is presented by a labor union other than the holder of a CLA or administrator of an LC, as well as when demand for a CLA is being made where one has already been deposited with the CAB. Before initiating the proceedings for any call for strike, the President of the Board, must verify that a CLA has not been previously deposited. After this is done, the President will order the corresponding certification, and will notify the petitioner of its resolution in writing.

Special Procedure to Establish Majority:

Special proceedings are designed to expedite matters that due to their nature, require an expeditious resolution. Article 892 specifies that the conflicts arising from the application of the articles indicated therein, including Articles 389 and 418 (for LCs), regarding the Board's declaration of majority loss, are subject to Special proceedings.

As mentioned in Article 893, the procedure begins with a suit through which the plaintiff offers evidence before the appropriate Board. The Board then summons the parties to a hearing ten days in advance. The conciliation, the action(s) and defenses, evidence and resolution, are all covered during the hearing that is supposed to take place within fifteen working days following the day in which the action was brought. The defendant is cautioned by the Board issuing the summons, that failure to appear will be regarded as acceptance of the plaintiff's petitions, except where they are contrary to Law, as provided in Article 894.

The conciliation, action and defense, evidence and resolution hearing is governed by the rules in Article 895: I. The Board is to attempt conciliation in accordance with Sections I and II of Article 876 of the Law; II. When a conciliation is not possible, the parties are to declare whatever they feel is convenient, then they are to formulate their petitions, offer evidence, and introduce only that which has been admitted; III. If a recount of workers is offered, the rules in Article 931 are followed; and IV. When the admission of evidence is concluded, the Board will listen to the allegations and declare a resolution.

If the plaintiff does not appear at the hearing, as provided in Article 896, the initial suit and appearance is to be considered as established, and, if required, any accompanying evidence will be regarded as having been offered. Article 897 points out that in the case of Article 389, regarding the loss of majority and consequently, the loss of a CLA, as declared by the CAB, and Article 418, concerning the same matter for LCs, the President of the Board or the Special Board is to intervene. The special procedures are subject to the provisions of Chapters XII and XVII, under this Title, in any way applicable.

Right to Strike as a Remedy to Compel the Employer to Enter into a CLA When no Prior CLA Has Been Executed:

As indicated earlier, when there are no other labor unions competing for a CLA, should an employer refuse to enter into a CLA, a duly registered labor union may petition an employer with a call for strike. The question regarding majority, however, is not to be determined initially, and may only be challenged later, under the strike proceedings, when any of the parties affected by the strike can ask the CAB to declare its inexistence.

Requirements for Legality and the Majority Issue:

The most important tactic involving strikes is the work suspension. However, Article 451 limits the suspension conditioning it to the following requirements: I. The strike must have one of the objectives of Article 450. II. The work is to be suspended by the majority of workers. However, the last part of Section II, indicates that the majority determination is not to be an issue prior to the work stoppage. In accordance with Article 929, Title Fourteen, Procedural Labor Law, Chapter XX, formerly, Article 460, the majority issue can only be brought up to justify that the strike is inexistent. Consequently, it appears that the "majority of workers" rule is not a prerequisite for the strike, in itself, to begin. The final requirement before suspending work, per Article 451, Section III, is that Article 452 prerequisites are met. Here, again, Article 452 was derogated and replaced by Article 920 in Chapter XX of the Procedure for Strikes.

Climent Beltrán explains that Section I of Article 451, refers to the fundamental requirement for strike, while Sections II and III, refer to the formal requirements, noting that Section II does not allow a previous recount.⁽²²⁾ To determine the legality of a strike, first it must meet the requirements of Article 450 which are the objectives of the strike. Next, it will be necessary to examine Article 459 that provides the cases under which a strike is inexistent: I. The work suspension is carried out by a lower number of workers than those established in Section II of Article 451; II. The strike has not fulfilled any of the objectives established in Article 450; and III. The requirements of Article 452, now Article 920, have not been met. The last paragraph states that the strike cannot be declared inexistent for any other reasons than these.

Procedure to Determine Strike Majority:

Under Article 929, the parties affected by the strike may petition the Board within seventy-two hours of the work suspension to ask that it be declared inexistent for the reasons indicated in Article 459 that make the strike inexistent, as does the failure to meet the requirements of Article 920. If there are no petitions for the CAB to declare the strike inexistent, then it will be considered legally existent.

Article 930, Sections I-VI, constitute the proceeding through which the inexistence may be declared: I. The petition is to be presented in writing with a copy for each of the summoned workers and the labor unions or coalition of workers who are summoning. The legal causes and grounds must be indicated on the petition. No subsequent varying causes for inexistence are to be argued.; II. The Board is to notify the striking parties of the petition for inexistence and will listen to the parties at a hearing where offer and admission of evidence is to be conducted within a five-day term. III. The evidence shall refer to the causes for inexistence contained in the petition mentioned in Section I, and, where the petition is presented by third parties, these should also tend to prove their interest. The Board will only accept evidence that satisfies the mentioned requirements; IV. The evidence is to be presented at the hearing, except for the provisions in the following article [931]. Only in exceptional cases will the Board defer their admission when, due to their nature, they cannot be exhausted at the hearing.; V. At the close of the phase for the admission of evidence, the Board is to resolve the existence or inexistence of the legal status of the strike within the next twenty-four hours; VI. If it is to resolve for inexistence, then representatives of workers and employers of the Board are called to form the panel. The resolutions are decided by the attendees. If the decision results in a tie, the absentee votes are added to that of the President.

Recount Procedure:

When a recount of workers is offered as evidence, the rules in Article 931, apply: I. The Board designates the place, day and hour in which it is to be conducted; II. Only the workers of the company who attend the recount have a right to vote; III. The workers who were dismissed by the company after the date of the petition to the employer, will be considered workers of the company; IV. The votes from trust workers, or those who were admitted to work after the petition to the employer, will not be counted; and V. The objections to the workers who attend the recount are to be made at the exact time of the task, in which case, the Board is to summon a hearing for offering and admission of evidence.

Trueba Urbina explains that the above proceeding is the first to regulate the recount of workers, which is conducted only where the majority is an issue argued by the companies, workers or third interested parties, and as such, the recount does not apply to other circumstances. Furthermore, he clarifies, as indicated above, a recount prior to the work stoppage would originate a premature qualification.⁽²³⁾

Climent Beltrán explains that the strike can be classified as legal, illegal, or existent, inexistent, and as justified or unjustified, but in the end, the most significant is that the Board declares the strike as existent.⁽²⁴⁾

Because the legality of the strike is an inherent part of its existence, having examined the contents of Article 459, Sections I-III, which describe the instances where the strike is legally inexistent, it can be concluded, that as long as (I) the strike is exercised by the majority, even though it is not an issue until it is raised by those who oppose it and petition for inexistence; (II) that the strike meets the objectives, according to Article 450, Sections I-VII, which are the same requirements of Article 444 which make the strike legally existent; and (III) having complied with the procedural requirements of Article 920, a strike can be considered as legally existent.

Applicable Jurisprudence concerning Recount:

Recount. Article 378 of the Federal Labor Law establishes that if within the same company there are several labor unions, when company or industry, or one or the others compete, the collective labor contract is to be executed with the one which has the highest number of workers within the company; if trade labor unions compete, the collective labor contract shall be executed with the group of majority labor unions which represent the professions, as long as they agree, but if they do not, each labor union shall execute a collective labor contract for its own profession, and if several trade and company, or industry labor unions compete, the first are to enter a collective labor contract for their profession as long as the number of their affiliates is higher than the one for the workers of the same profession which form part of the company or industry labor union. From this, it can be concluded that once the collective labor contract has been executed, the labor union, holder of the same, represents the professional interests of the affiliated workers since this is no more than a consequence of the fact that such organism counts with the majority to which the legal precept alludes, and by virtue of said contract's coverage of all the workers in the company, even those who are not unionized, it is in their interest to obtain compliance of such, be it from the holder and administrator or from whomever intends to become such, and for that effect, it is required from one or the other to show that it has the support of the majority, both from unionized, as well as from the other workers in the company from which the labor union which executed a collective labor contract has the alluded representation, as long as it conserves the majority referred to, for if it is lost, such labor union shall cease to have the representation of the professional interest and, therefore, the administration of the collective labor contract, so much so, that if another labor union, without title, claims for itself title to, and future administration on the basis that it has the majority of workers who labor in the company, the title and administration it claims belongs to it if it shows such majority, which can become known through proof of recount which is limited by Article 462,⁽²⁵⁾ since in this task, it is not only the votes from the workers who personally attend which are considered, with the exception of the votes from trust workers which are not taken into account, but where the absolute and unrestricted personal intention of the workers regarding the labor union to which they belong, or which they consider should represent their professional interests, can be certified. As such, the results of the recount will show which of the contenders is the labor union to represent the majority, and this is why this evidence is to be given the weight it deserves to resolve over title and administration of a collective labor contract. Jurisprudencia: Informe 1978, 2a. Parte, 4a. Sala, pp. 7-9.

Recount of Workers. Not sufficient to verify the right to title or administration of the collective labor contract. If a labor union demands the title and administration of a collective labor contract, the recount itself does not constitute plain evidence to verify the attempted action since such evidence proves only the sympathy of the workers for one or another labor union at a determined moment, but not the extreme differences which must be proven to verify that the workers' membership in the plaintiff labor union and acquisition of the majority on which it is to base its right, such as: that it counts with duly registered by-laws in which the conditions to admit members are established; that according to the terms of such by-laws, the workers of the company shall be admitted as members of said labor union; that such admissions are to be communicated to the authorities under which it is registered; and that before such authority, there is a list containing the number, names and addresses of its members, as well as of the employer, companies or establishment in which services are rendered. Jurisprudencia: Apéndice 1975, 5a. Parte, 4a. Sala, Tesis 194, p. 185.

Inexistence of Strike declared by the CAB:

If the Board declares the strike inexistent, Article 932 establishes the following: I. The Board will set a twenty-four hour term for the workers to return to work; II. It will announce its resolution to labor union representatives, cautioning the workers that, except for justified reasons, their failure to comply with the resolution will terminate their work relationship with the employer; III. The Board will declare that the employer has not incurred any liability, and that by failing to report for work within a specified time, the employer will be free to employ others; and IV. The Board will order the appropriate measures to resume work.

When a strike is determined unlawful, as described by Article 445, the Board declares the termination of the work relationship in accordance with Article 934. Climent Beltrán construes that Article 445 points to the two unlawful instances of a strike. Because Article 934 authorizes the CAB to declare the strike unlawful and order the termination of the work relationship, 934 acts as the sanction applied against the transgressions of the strike.⁽²⁶⁾

How frequently is an election held to determine if the employees desire representation by the union seeking recognition?

Please refer to the answer to Question 1 concerning the majority of workers in support of a union seeking recognition through the administration of a CLA.

As specified earlier, the workers seeking representation from a union which has not been recognized by an employer as the bargaining representative, risk application of the exclusion clause, if such has been established in the CLA. However, as also mentioned, when there is a majority of workers opposed to the labor union to which they belong, the workers can opt for its dissolution, which according to Article 379, Section I, requires a two-thirds membership vote, and start a new one. They can also opt to renounce the Board of Directors of the labor union to which they belong and form a new one applying or modifying the by-laws, accordingly, in compliance with Article 371, Section VIII of the FLL. In this case, the labor union cannot apply the exclusion clause in detriment of the majority of the workers, or expel them since the labor union is no longer privileged by a majority vote of the two thirds of total members of the union as Section VII of Article 371 requires.

Generally, ordinary assemblies are called every six months. This concurs with Article 373 which requires that a labor union's Board of Directors render its assembly a complete and detailed account of the administration of the union's estate at least every six months. As required by Article 377, labor unions have an obligation to inform the authority under which they are registered of any changes in the Board of Directors, or modifications to their by-laws within a ten-day period after they occur. They also have to notify the authority of the new memberships and withdrawals at least every three months.

Ordinary assemblies deal with new memberships and approvals, as well as with withdrawals from the labor union. Extraordinary assemblies deal with executive appointments, removals from office, expulsions, modifications of the by-laws, and dissolution of the labor union, among others.⁽²⁷⁾ Article 371, Section VIII, imposes that the manner in which to call assemblies, their frequency and quorum is to be described in the by-laws. When the Board of Directors does not call assemblies, as established in the by-laws, the workers representing at least thirty-three percent of the total of the union members, may require the Board of Directors to do so. If it fails to convoke within a ten-day period, the workers may do so, but in order for the assembly to session and adopt resolutions, two-thirds of the total membership of the labor union or of the section must attend. The resolutions must be voted on by fifty-one percent of the total number of members of the labor union or section. Climent Beltrán indicates that matters involving expulsion, stipulated in Section VII of Article 371, a)-g), modification of union by-laws, acquisition or sales of labor union property, dissolution, as stipulated by Article 379, increase in union dues, or those called by the workers which represent thirty-three percent of the total membership, to resolve, require the approval of two-thirds of the total number of members of the labor union.⁽²⁸⁾

May employees covered by a bargaining agreement seek to obtain representation by a different union?

It depends on whether or not their CLA contains an exclusion clause. If the exclusion clause is not found in the CLA, the workers may join another union. The right of freedom of association and to form trade unions is guaranteed by Constitutional Article 123, Part A, Section XVI , and regulated by Article 358 which provides that, "No one can be forced to join a union or not to. Any stipulation which establishes a conventional fine in case of separation from a labor union or which in any way modifies the provision contained in the preceding paragraph shall be ineffective." Section XXII, also in Constitutional Article 123, subjects an employer who dismisses a worker ". . .for having been admitted to an association or union, or for taking part in a legal strike. . . ," to the Constitutional indemnization. Furthermore, Article 133, Section IV, under the Fourth Title, Rights and Obligations of the Workers and Employers, Chapter I, Employer Obligations, prohibits employers from forcing their workers through coercion, or any other means to become affiliated with or to withdraw from a labor union or group to which the workers may belong, or to vote for any particular slate.

Please explain how the "exclusionary clause" operates.

The Exclusion Clause:

The admission and exclusion clauses arise from the CLA or the LC. While the FLL acknowledges their existence in labor contracts, they are optional, i.e., the parties do not have to agree to it. The first paragraph of Article 395 refers to the admission clause, and the second to the exclusion clause. The application, particularly of the exclusion clause has been Constitutionally challenged where it has been viewed as an attempt to circumvent the right of freedom of association, guaranteed by Article 123, Section XVI. In theory, however, application of the exclusion clause, as a security clause, fortifies labor unions under a legal system where union plurality is envisioned under Part "A" of Article 123. The following jurisprudence was issued in 1934 by the Supreme Court:

"Industrial Law accepts those which have come to be known as, 'Exclusion Clauses', through which the employer is forced to enter into contracts with workers imposed by the working associations, limiting in that manner, the employer's freedom to contract. Parting from the principle that unity increases strength, one of the first concerns of the men who have been struggling for the advancement of the working class, has been to unite all workers in such associations to best strengthen them in the eyes of the employer, and thus, provide better opportunities to obtain from the same, more advantages in the contracts executed. Along these lines, it was ideally conceived that in each industry there were but one association formed by all the workers who rendered services in it, since the existence of several groups in one same industry, due to the differences that could arise, would decrease their strength in the eyes of the employer who could take advantage of the differences among them, in detriment of the workers themselves. And tending to realize that ideal, the so-called 'exclusion clauses' have been admitted, as a means through which the benefits and privileges which favor the majority groups to compel those of the minority into a fusion with them, and form, in that way a sole association which, naturally, would always have, as mentioned, greater strength to challenge capital.

If it is true that one of best ways in which to advance the working class is to fortify it in the eyes of the employers, to achieve that end, whatever is necessary must be done so that in every industry there exists a sole association of workers; however it is also true that in order to reach that goal, it would be unfair to relinquish the rights which the members of the minority associations obtained before the execution of the collective labor contract and, surely, this is why it was decided that article 49 of the Federal Labor Law, which accepted the 'exclusion clauses' as legal, was to established that they could not be applied in detriment of the workers who were not a part of the labor union executing the contract, and who already rendered services in the company at the time of the contract execution. (Ejecutoria 7 de febrero 1934. amparo Alianza de Ferrocarrileros Mexicanos. Informe de 1934.)⁽²⁹⁾

(1957 Definition) Exclusion Clause: That which binds the employer in allowing only those who are unionized as workers. This clause is legal in collective labor agreements, and any others, which establish privileges in favor of the unionized. It may not be applied in detriment of the workers who are not a part of the contracting union and who are already working in the company at the time the contract is executed. (49)."⁽³⁰⁾ Compare the above with Article 395: This clause and any others, which establish privileges in their favor, may not be applied in detriment of the workers who are not part of the contracting union and who are already working in the company or establishment prior to the date in which the union requests the celebration or revision of the collective contract and the inclusion in it of the exclusion clause.

Mario de la Cueva explains that the Law of 1931 used the term, "exclusion clause of admission", and that the modification was made because only members of the union were admitted to work, however, once the workers were proposed and admitted to work, the admission clause was executed.⁽³¹⁾ The Motives for law explains that Article 395 was modified to change the term, "admission", to avoid plots against labor unions. The clause was to be effective for all workers who were admitted to work after the date in which the CLA, containing the exclusion clause, became effective. Article 395, under Seventh Title, Collective Work Relations, Chapter III, Collective Labor Contract, and Article 413, same Title, Chapter IV, Law-Contract, govern the admission clause. Articles 395, final part, and 371, Section VII, under the same Title, Chapter II, Labor Unions, Federations and Confederations provide for the application of the exclusion clause and the expulsion of union members.

The admission and exclusion clauses contained in Article 395 may be incorporated into the CLA or the LC where the parties agree. Once incorporated into the CLA, however, the employer acquires the obligation to exclusively admit the workers proposed by the labor union with whom it has contracted. Along with this obligation to exclusively admit unionized workers proposed by a labor union, comes the duty to apply the exclusion clause whenever workers resign or are expelled from the union The labor union notifies the employer of the resignations from the union, as well as of the members who have been expelled. The employer's duty to apply the exclusion clause when a member withdraws or is expelled, is limited to dismissal, without having to examine whether it was proper in cases of expulsion. Therefore, when the employer separates a worker in application of the exclusion clause, there is no liability, other than payments to the worker of all remaining amounts owed for the benefits established by Law, such as the portions of unused vacation, overtime and seniority premiums. As Article 48 provides, if during the trial, an employer does not establish the basis for dismissal, the worker has, regardless of the action brought, a right to the payment of lost wages from the date of dismissal to the time when the award is executed. But, where there was an improper application of the exclusion clause on the basis of an incorrect procedure for expulsion, the employer is not liable for lost wages, and can only be ordered to reinstate an improperly dismissed worker.

Reinstatement of worker and payment of lost wages, actions of. When reinstatement is being sought from the employer, and simultaneously, payment for damages for lost wages stemming from illegal exclusion from within the labor union, the one which is secondary in type must conclude since the first action from which it derived was extinguished. Jurisprudencia: Apéndice 1975, 5a. Parte, 4a. Sala, Tésis, 195, P. 186, Véase: Acciones contradictorias: Despido.

Exclusion Clause, application of, without employer liability. If the defendant company, at the time of separating the complainant, limited itself to fulfillment of the terms of the corresponding collective labor contract, it is evident that when it was proven that the expulsion of the worker from the internal union group to which he belonged, was carried out irregularly, and contrary to the precepts of the mentioned contract and more so to the corresponding by-laws, the only consequence from such facts, is to order the company to reinstate the worker; but without having to impose on the company the obligation for payment of lost wages, since the company did not voluntarily act on its own to dismiss the worker. (Arts. 395 and 413.) Jurisprudencia: Apéndice 1975 5a. Parte, 4a. Sala, Tesis 26, p. 34.

Notwithstanding the absence of employer liability for dismissal where the exclusion clause is applied improperly, there is a duty to ensure the exclusion clause applies:

EJECUTORIA.-Exclusion Clause, application of.-The employer is not only required, in case of the application of the exclusion clause, to ensure: a) the authenticity of the document through which it is being advised of the application of the exclusion clause; b) that such clause is contained in the respective contract; c) that the excluded workers belong to the labor union applying the mentioned clause, and once this has been verified, the employer, without liability, is compelled to fulfill the terms of the particular agreement, without rationalizing its interference with the labor union proceedings followed in application of such clause, since this can only concern the workers. Quinta Epoca: Tomo LXV, pág. 3257. Cía. de Servicios Públicos de Nogales, S.A. Apéndice 1917-1985. Quinta Parte. Cuarta Sala, pág. 34.

In answer to the question of whether the procedure regulated by Article 371, Section VII, followed by the labor union for expulsion of members is also applicable when a member resigns, the Supreme Court rendered the following opinion:

EJECUTORIA.-Exclusion Clause by dismissal, in cases of resignation from the labor union.- Because the Federal Labor Law in its article 395 and the Law-Contract of the Textile Industry in its Cotton Division and their Blends, in its article 15, refer to two instances where the labor union has the right to ask the employer for the separation of a worker: 1.-Where the worker resigns from the organization, and 2.- Where the worker is expelled from the labor union, it is logical that where the latter case presents itself, the procedure indicated by article 371, section VII of the Federal Labor Law should be followed to show the affected party's liability, but not so where the worker voluntarily separates from the labor union, for it is not necessary to follow such. Amparo directo 3534/74.-Rodolfo Sanchez y otros.-21 de febrero de 1975.- 5 votos.-Ponente:María Cristina Salmorán de Tamayo.-Secretario:Marco Antonio Arroyo Montero. Informe 1975. Cuarta Sala, pág. 84.

Where the CAB resolves that an exclusion clause has been improperly applied and orders the employer to reinstate the workers notwithstanding the exclusion clause, the Supreme Court issued the following interpretation:

EJECUTORIA.-Exclusion Clause. Employer's obligation to reposition the workers in the cases where it is ordered for undue application of.-Where an exclusion clause has been agreed to by a company and a labor union, the former is compelled to reposition the workers, for the reasoning behind the award, which views the legality or illegality of the workers' suspension, does not fall within the legal and contractual attributes of the company discussed, and for that reason, the order given by the Conciliation and Arbitration Board to the employer regarding the reposition of workers is correct. Séptima Epoca. Quinta Parte. Vol. 54, pág. 13. A.D. 4164/71. Congeladora San Juán, S.A.. 5 votos. Apéndice 1917-1985. Quinta Parte. Cuarta Sala, pág. 39.

The Statute of Limitations (SOL) applies to the application of the exclusion clause where a worker has resigned from the labor union and the time in which the company may properly separate:

EJECUTORIA.-Exclusion Clause for separation, Statute of Limitations for the action for application of.- Since dismissal of a worker by the employer and application of the exclusion clause have the same effects, because both follow the same objective which is to terminate the work relation, it means that where there is an identical juridical consequence, the same governing statute of limitations should apply, consequently, a labor union's action to apply the exclusion clause for separation is limited to one month which is the term given employers to dismiss the workers, granted by article 517 of the Federal Labor Law, and the moment from which the time limitation is to start to run, if it entails the employer separating the members who resign from the labor union, it is to be computed from the day following that in which the labor union has been notified of the resignation. Séptima Epoca. Quinta Parte. Vols. 145-150, pág. 19. A.D. 1739/80. José Luis García Rosales y otros. 5 votos. Vols. 163-168, pág. 13 A.D. 1465/82. Sindicato de Telefonistas de la República Mexicana. 5 votos. Apéndice 1917-1985. Quinta Parte. Cuarta Sala, pág. 35.

Does the exclusion clause prevent employees covered by a bargaining agreement from joining an independent union and seeking recognition of that union?

Yes. While incorporation of the exclusion clause is not mandatory, it is recognized in a CLA, according to Article 395, where it has been established as part of the negotiations. When incorporated into the CLA, the employer acquires a duty to apply it after notification from the labor union where a member has resigned, as provided by Article 395, final paragraph, or where the member has been expelled from the union, in accordance with the rules in Article 371, Section VII.

The presence of the exclusion clause within a CLA determines whether or not a worker can be separated by an employer as a consequence for membership in or for campaigning activities of another union. Some labor union by-laws may expressly forbid their members to join other labor unions where such act could affect their membership. In such cases, a labor union could initiate expulsion proceedings based on Article 371, Section VII, when a member has violated a prohibition in the by-laws. If expulsion is the sanction to be applied, it would lead to the application of the exclusion clause by the employer, per the final paragraph of Article 395.

However, as stipulated above, if the workers were a two-thirds majority, they could opt to dissolve the labor union per Article 379, Section I, or they could choose to renounce the Board of Directors, and vote for a new one, in accordance with the freedom granted labor unions under Article 371, Section VIII. In any event, it would be impossible for the labor union to apply expulsion proceedings, per Section VII of Article 371, against a majority of workers.

Do situations exist where employers foster, encourage, control or finance a "company" union?

It is important to differentiate between collaboration, authorized by Law, and prohibited labor union-management alliance where the objective is to deprive the workers of their rights, and which has been a serious concern for legislators. There have been some instances involving schemes such as one where the amounts owed to deceased workers' beneficiaries were taken by a company's personnel manager and the union leader. Other cases include a clause in a law-contract which authorized a thirteen percent contribution from the workers' savings fund for a labor union abstract social welfare cause which eventually depleted the fund. As Mr. De Buén points out regarding some disadvantages of the law-contracts, these may be a way for international companies to try to control the larger central unions.⁽³²⁾

Yet, some of the employer obligations enumerated in Article 132, under the Fourth Title of the FLL, Chapter I, Employer Obligations, could be thought of as collaboration between labor union and management. For instance, employers have an obligation to advise the labor unions when vacancies become available, as stated in Section XI of Article 132. That obligation arises from the admission clause in a CLA authorized by Article 395, and preferential rights found in Articles 154-157 under the same Title, Chapter IV, Preferential Rights, Seniority and Promotion.

If so, is this an accepted practice or has it ever been successfully challenged through the appropriate channels? Why or why not?

Any control by companies over labor unions, aside from what was explained above, is not an acceptable practice. As often commented among labor specialists, the quality of a benefits package obtained by a labor union may be so poor that it may lead you to wonder whether the employer has a certain degree of influence over that particular labor union. The workers, who are directly affected by the CLA negotiations between employer and labor union, rarely bring complaints. Their reluctance, however, can be translated into a fear of losing their jobs which is accentuated by a critical economy.

The workers, through their union representatives, can petition Labor Inspectors, who have a duty to investigate all FLL violations and report them to the appropriate authorities. In addition, the FLL, in Article 1003 under Title Sixteen, Responsibilities and Sanctions, provides that workers, employers and the labor unions, federations and confederations of one another, may denounce violations of labor laws before Labor authorities.

2. Internal Union Operations:

What are the rules and procedures governing the conduct of internal union affairs?

The governing rules and procedures are those contained in the labor union by-laws in accordance with Article 371, Sections V, VI, VII, VIII, IX, X, XI, XII, XIII, XIV and XV of the FLL.

These requirements are reflected in Article 359 which is the essence of union autonomy: This provision expresses that labor unions have a right to establish their own by-laws, to freely elect their representatives, organize their administration, their activities, and formulate their action program.

Article 371 indicates all the information which is to be included in the by-laws: I. Name, distinguishing it from others; II. Address; III. Objective; IV. Duration, which, when omitted, will be understood as undetermined; V. Conditions for Admission; VI. Obligations of the members; VII. Motives and procedures for expulsion and disciplinary measures. In expulsion cases, the following rules are to be observed: a) The assembly of workers are to meet for the purpose of expulsion. b) When it concerns labor unions integrated by sections, the expulsion procedure is to be conducted before the assembly of the corresponding section, but the agreement for expulsion is to be submitted to the workers for decision in each of the sections comprising the labor union. c) The affected workers are to be heard in defense, according to the provisions in the by-laws. d) The assembly is to be aware of the evidence which is to serve as the basis for the proceeding, as well as of the one offered by the affected party. e) The workers are not be represented, nor are they to cast their vote in writing. f) The expulsion is to be approved by the majority of two-thirds of the total members of the labor union. g) The expulsion is only to be decreed for cases expressly consigned in the by-laws, correctly established, and exactly applicable to the case; VIII. The procedure for assembly call, the intervals between ordinary assemblies and the quorum required for sessions. When the Board of Directors does not call a timely planned assembly as established in the by-laws, the workers representing at least two-thirds of the union or of the section may require the Board of Directors to call it, and if during a ten-day term, it does not, the requiring parties may call the assembly, in which case, in order for the assembly to session and adopt resolutions, it will require two-thirds of the total number of members. The resolutions must be adopted by, at least, fifty-one percent of the total of the members of the labor union or of the section; IX. Procedure for the election of the Board of Directors and its number of members; X. Duration of the Board of Directors; XI. Laws for the administration, acquisition and disposal of the property belonging to the labor union estate; XII. Form of payment and amount of labor union dues; XIII. Time for submitting accounts; XIV. Laws for the liquidation of the labor union estate; and XV. The remaining laws approved by the assembly.

Obligations:

When a labor union is registered, it acquires the rights and obligations of fictitious persons with the exceptions provided by Law. Articles 373-375 of the FLL govern the administrative rights and duties. Article 373, unconditionally requires that the Board of Directors disclose complete and detailed information concerning the administration of the union's estate to the assembly at least every six months.

Articles 374 acknowledges labor unions as fictitious persons with judicial capacity to acquire property and real estate for the labor union's immediate and direct use, and to defend their rights and exercise the corresponding actions before all authorities in accordance with Article 375. Article 375 authorizes labor unions to represent their members in the defense of all their corresponding individual rights to directly act or intervene, desisting only when the workers request it from the union.

Article 376 indicates that labor union representation shall be conducted by its Secretary General, or by the person designated by its Board of Directors, except as otherwise established in the by-laws. The members of the Board of Directors who are separated by the employer or who separate on account of the latter, are to continue exercising their functions except as otherwise decided in the by-laws.

The labor union obligations are listed under Article 377. Section I provides that unions must disclose all the information requested from the Labor authorities, as long as it exclusively relates to their function as labor unions. Section II requires unions to inform the authority, under which they are registered, of any changes in their Board of Directors and modifications to their by-laws, attaching a duplicated authorized copy of the corresponding minutes within a ten-day term. Section III, directs unions to inform the same authority every three months, at least, of the membership registration and withdrawals.

Article 378 prohibits labor unions from interfering in religious matters and carrying out commercial activities.

Dissolution:

Article 379 indicates that labor unions will dissolve by: I. A two-thirds vote by the members who comprise it; and II. Expiration of the term stipulated in the by-laws.

Where a labor union is dissolved, any remaining union assets are to be applied to whatever the by-laws indicate. When it has not been expressed, the assets are to go to the federation or confederation to which the labor union belongs and, in their absence, to the Mexican Institute for Social Security.

Federations and Confederations:

Articles 381-385 of the FLL regulate the conditions under which labor unions may form federations and confederations. Article 381 establishes that labor unions may freely form federations and confederations which will be subject to the regulations in the Chapter, wherever applicable. The members of the federations and confederations may withdraw from them at any time despite any contradicting pact. Article 383 states that the federation and confederation by-laws, in addition to the requirements of Article 371, are to include the following: I. Name and address, as well as those of their constituents; II. The conditions for adhesion of new members; and III. The manner in which their members are to be represented in the Board of Directors and in the assemblies. The federations and confederations register before the STPS, according to Article 384. The last paragraph under Article 366 of the FLL is also applicable to federations and confederations. Article 385 enumerates the requirements to be submitted to the authority, as indicated in 384: I. An authorized copy of the constituting assembly; II. A list with the names and addresses of their members; III. An authorized copy of their by-laws; and IV. An authorized copy of the assembly minutes through which their Board of Directors was elected. The documentation is to be authorized in accordance with Article 365 of the FLL.

Internal Affairs:⁽³³⁾

The following internal affairs narrative is illustrative, but not inclusive of the contents of the labor union by-laws. As already mentioned, the by-laws are the rules under which the internal affairs of the labor union are governed, as mandated by Article 371, Sections I-XV:

The constituting assembly act is to be executed under the requirements of Articles 356, objective; 360, classification; and 364, minimum number of workers. The Order of the Day customarily includes: constitution of the labor union; discussion and approval, where required, of the by-laws; election of the Executive Committee which is to make up the Board of Directors, as well as the Commission of Vigilance and the Commission of Honor and Justice. The assembly then proceeds to vote and unanimously approve the Order of the Day, and adopts the required resolutions which: a) Constitute, through a unanimous vote, an association of workers. The union is therefore constituted under the by-laws to which others may be adhered and which is to conduct its objectives in accordance with Articles 356, 360, concerning its classification, and 364 regarding the minimum member requirement to register, as well as other governing laws of the FLL. b) Through majority or unanimous voting, approve the by-laws which are attached to the minutes and regulate the constituted labor union. c) Elects the Executive Committee by majority votes with the attributes and functions indicated in the by-laws for a specified period to be indicated. It is comprised of the Secretary General, Secretary of Organization, Secretary of Minutes, Secretary Treasurer, Secretary of Labor and Conflicts, and Secretary of the Exterior. IV. Elects the members of the Commission of Vigilance by majority votes for the time specified, as indicated, which is to have the attributes and functions described in the by-laws. V. Elects the members of the Commission of Honor and Justice by majority votes for the specified period, which is to have the attributes and functions also described in the by-laws. Immediately following the above, the President of the Board of Debates invites the persons who have been elected to their posts to an oath-taking ceremony through which they manifest their acceptance and are sworn-in. After this act is concluded, it is signed by the registrar, the members of the Board of Debates, the Executive Committee, and other participants wishing to do so.

The Labor Union By-laws:

The labor union has the freedom to stipulate, in accordance with the governing laws to which they are subject, all the conditions under which it is to manage its internal labor affairs. Usually, the first chapter of the by-laws is dedicated to the name, address, objective, per Article 356, and its duration.

Membership:

Chapter II of the by-laws will generally contain the rules regarding the associates, their rights and obligations. This chapter establishes the conditions for membership which requires being over age fourteen, and not having any legal impediments which could restrict membership. Covered here are also the legal limitations to membership in accordance with Articles 9, 11 and 183, and other laws under the FLL, pertaining to trust employees. Admission is subject to approval by the Executive Committee, in accordance with the candidate's application where the prospective member promises strict adherence and obedience to the by-laws and the assembly decisions. In addition, the application for admission needs to be recommended by two union members who will attest to the candidate's background. The member's admission is not subject to any discrimination based on sex, nationality, political or religious ideals.

Member Rights:

After admission, the members acquire the following rights: I. To participate in assemblies with the right to vote and express opinions; II. To be elected to the Board of Directors and to commission positions within the labor union after age sixteen; III. To be represented in the defense of individual labor rights with the right to request that the labor union desist from intervening on their behalf, in accordance with Article 375 of the FLL. IV. A right to all the economical and social benefits which the labor union grants its members. V. A right to be proposed to a job for the first time, without affecting the rights of those who are already working. When there are several workers competing for the same position, the labor union is to prefer, under equal circumstances, those workers who are Mexican, as opposed to those who are not, those who are have previously and satisfactorily worked for the company for a longer period, those who, while not having any other source of income, have a dependent family, and those who are unionized, as opposed to those who are not. The latter section refers to the preferential rights of Article 154. When the position requires training and advancement, the provisions in Article 159 will apply with the condition that the worker who fills the vacancy, must become a member of the union in application of the admission clause, where established in the collective contract, in accordance with Article 395.

Member Obligations:

Normally, the obligations of members of the union include payment of their union dues, as established by Law; punctual attendance at and participation in assemblies with due composure; acceptance and dutiful realization of the union positions to which they may be designated, except where there is some justified impediment. Members are also required to carry their union identification cards and disclose them whenever required to do so by the union. They are required to act in accordance with the agreements and the projects adopted by the assemblies and the Board of Directors.

Assemblies:

The assemblies are the decision making organ of labor unions whose resolutions, along with the autonomy granted by the FLL, regulate the union's internal affairs. As specified, above, under labor union obligations, the labor union must through its Board of Directors, render a complete and detailed account of its estate at least every six months. The by-laws are to determine the place and the dates in which the assemblies are to meet, as well as their purpose. There are to be ordinary and extraordinary assemblies.

Ordinary assemblies cover the state of accounts by the Executive Committee, administration of funds and other property which is part of the labor union estate. They also come together for the Report by the Executive Committee on new admissions for approval by the assembly, as well as on withdrawals.

The following are examples of the matters to be decided during extraordinary assemblies: I. Appointment of the Executive Board, as well as of the commissions for Vigilance, and Honor and Justice. II. Matters concerning the suspension of union rights. III. Matters concerning union position removals. IV. Matters involving the resolutions over the expulsion of members, which require a special assembly, as provided in Section VII of Article 371. V. Matters involving union fee increases. VI. Acquisitions and sale of real estate owned by the labor union which is immediately and directly related to the objectives of the labor union. VII. Matters involving any modification to the by-laws. VIII. Matters regarding the dissolution of the labor union, in which case, the members are to assemble exclusively for that purpose. IX. Any other matters required by the circumstances.

The by-laws are to indicate the required quorum which is fifty one percent of the members, as mentioned in Article 371, Section VIII, final paragraph. This percentage does not apply to the cases involving expulsion of members, modifications of the by-laws, acquisition or sale of union real estate, increases in union fees, the dissolution of the labor union, or those convoked by the workers who represent thirty-three percent of the total of members of the labor union when the Board of Directors has not done so according to the same article and section just mentioned. In such cases, it will be necessary for two-thirds of the workers to attend, with the understanding that any of the issues to be voted on, are to be approved by the majority of the two-thirds of the total number of members.

Assemblies are to be convoked by the Secretary General with advance notification as established in the by-laws. The notification is to specify the date and place of the assembly, and the matters to be decided. As mentioned, when the Board of Directors fails to convoke according to the by-laws, thirty-three percent of the workers may require the Board of Directors to do so. If after a ten-day period, it persists in its failure to convoke, the petitioners may call an assembly, but in order to session and adopt resolutions, at least two-thirds of the total members of the union must attend.

All of the assembly votes shall be individual and direct and may be conducted through a nominal vote, or economically, by raising an arm, or by secret voting through ballots, but the number of resulting votes shall be accurately recorded in the minutes, except where it involves a modification of the by-laws, an acquisition of real estate, the increase of union fees, the expulsion of members from the union or the dissolution of such, where the voting shall be nominal and direct with a certification of the signature of those who voted and the way in which they voted.

The voting process for the Board of Directors, and the Commissions of Vigilance, and Honor and Justice is direct and secret. Once conducted, the President of the Board of Debates declares the voting closed and cancels all remaining unused ballots recording them in the minutes. The registrars recount the votes in the presence of the Board of Debates and the representatives of the registered slates. The president of the Board of Debates announces the results.

Are officers, representatives and delegates required to be elected by the membership? If so, is a secret ballot required? Who is eligible to seek union office? What are the requirements relating to election camp