Mexico NAO Report on Public Submission 9501
Official U.S. Government Translation
On February 9 of this year, the National Administrative Office (NAO) of
Mexico received a public submission presented by the Telephone Workers Union of
the Republic of Mexico (STRM), on matters related to labor legislation that
arose in the territory of the United States of America.
The NAO of Mexico, in accordance with Article 16(3) of the North American
Agreement on Labor Cooperation (NAALC), proceeded to review the contents of
Public Submission 9501/NAOMEX.
The review focused on U.S. legislation which protects and promotes the
principle of freedom of association and the right to organize. Principally, the
procedures that guarantee access to union representation and collective
bargaining were studied.
In this context, various means were used to obtain and analyze public
information on the relevant labor law. This procedure enabled us to better
understand the scope, application, and functioning of U.S. law, one of the
intended objectives of the Parties to the NAALC.
This document establishes, in the first part, the major legal issues
contained in Public Submission 9501/NAOMEX that arose in the territory of the
United States and how they are regulated in the applicable legislation.
The second part of the document has the objective of defining the causal
relationship between said labor legal issues and the obligations established by
the NAALC for each of the Parties. The actions by the NAO of Mexico to arrive
at its conclusions are explained briefly.
Finally, the NAO of Mexico reports on its conclusions and issues its
MATTERS RELATED TO LABOR LEGISLATION THAT AROSE IN THE TERRITORY OF
THE UNITED STATES OF AMERICA, CONTAINED IN PUBLIC SUBMISSION 9501/NAOMEX.
The Constitution of the United States of American does not explicitly
provide for a Labor Law, but instead, by establishing principles of individual
freedom, provides the fundamental basis for the development of workers' rights
in that country.
U.S. labor law is only in exceptional cases statutory.(1) As a general rule, federal legislation excludes
from local jurisdiction those aspects which affect interstate commerce. Within
the aspects regulated by federal legislation are the judicial framework for the
rights to organize, bargain collectively and strike, and for the functioning of
unions, among others. Said legislation is administered exclusively by the
federal authorities and is found, principally, in Title 29 of the Code of that
The public information obtained by the NAO of Mexico, regarding the
principle of Freedom of Association and the Right to Organize, focused on such
aspects as the formation of unions, union representation and the procedures to
determine union representation, the authorities responsible for the application
of the appropriate legislation, the concept of unfair labor practices,
compensation for damages to the worker, and related matters.
- UNIONS. FORMATION, MEMBERSHIP, LIMITATIONS, AND LEGAL STATUS.
The law recognizes the right of workers to organize, constitute, affiliate
with, and assist workers' organizations, as well as to bargain collectively on
their conditions of work through their representatives.(3) However, there is no specific legal procedure
to organize a union.
The requirements to conduct a union representation election are that
there be a determination that there exists an appropriate " bargaining
unit" and that there exists substantial support of the workers in said
unit to hold an election.(4)
The "bargaining unit" cannot include: agricultural
workers; domestic workers; independent contractors; supervisors; workers
subject to the Railway Labor Act; persons employed by their spouses or parents;
and government workers. There are no restrictions on foreigners being members
or officers of a union.
The appropriateness of the "bargaining unit" is dependant
on a number of factors related to the common interests of the workers involved,
among them the wishes of the workers, their level of organization, as well as
geographical and occupational considerations. The "bargaining unit"
can be the whole enterprise of an employer, a specific establishment, or a
subdivision of the same.
The union which seeks to be recognized as the exclusive
representative of a "bargaining unit", must obtain the support of a
majority of the members of the unit. This would grant the union the right to
negotiate with management on conditions of work which will govern the labor
relations of the membership. The competent authorities recognize the existence
and legal status of the unions in accordance with the law.(5)
- NATIONAL LABOR RELATIONS BOARD (NLRB) - COMPOSITION, FUNCTIONS,
SCOPE, AND AUTHORITY.
The NLRB is an agency of the Federal Government of
the United States, composed of five members designated by the President and
ratified by the Senate of that country. There are also a General Counsel and
regional offices. Its duties are administrative and procedural in labor
matters.(6) The NLRB does not have the authority
to enforce its decisions.(7)
The two main functions of the NLRB are : to conduct representation
elections to determine union representation in a "bargaining unit";
and to investigate and prosecute unfair labor practice charges. In both cases,
the Board becomes involved only at the request of one of the parties.(8)
The Board acts on all matters of unfair labor practices which are
brought forward by the General Counsel and has full authority on questions of
union representation. The General Counsel has exclusive authority to
investigate and prosecute within the NLRB.
Should an employer or workers refuse to abide by a decision of the
NLRB following a finding of unfair labor practices, the Board may petition the
U.S. Court of Appeals of the corresponding judicial circuit for a court decree
to enforce its order.(9)
- UNION REPRESENTATION. ELECTION PROCEDURES, INVOLVEMENT OF WORKERS
AND MANAGEMENT, COMPETENT AUTHORITIES.
The majority required by the NLRA
for a union to become the exclusive representative of a group of workers can be
determined, failing agreement between workers and management, through elections
organized by the NLRB. The question of representation of different unions
within a "bargaining unit" can be determined in the same manner.
The procedure for the election of representatives can be initiated
by the petition of a worker or workers interested in being represented, by a
union organization, or by the employer himself. Actions of the NLRB follow the
After receiving a petition, the Board must conduct an
investigation to determine if there is "reasonable cause to believe"
that there are doubts on union representation which affect commerce. If there
are doubts, a hearing must be held.(10)
Following the hearing, if there continue to be questions about
the degree of support for union representation, the Board must organize a
secret ballot election and certify the result.
Prior to an election, workers can demonstrate to the employer their
support for the union . Subject to certain rules, the employer may express his
opinion about the union. Notwithstanding the above, the law in no way permits
the use of threats or the promise of benefits to influence the results of an
election, as any such conduct will be considered an unfair labor practice
directed at influencing the right to organize of the workers. (11)
The purpose of the election is to determine whether or not a labor
organization becomes the exclusive representative of the workers of a
bargaining unit. The results of the election are valid for one year, during
which time no new election may be held within the "bargaining unit"
or in any subdivision.(12)
- UNFAIR LABOR PRACTICES. ADMINISTRATIVE RULES, PROCEDURES
(AUTHORITY, COMPETENCE, AND FINDINGS).
Unfair labor practices are acts by
employers or by union organizations which interfere with, restrict, or coerce
workers in the exercise of freedom of association and the right to organize.(13)
Following are examples of unfair labor practices by the employer:
threats of loss of employment or
benefits in order to influence union activities;
physical or mental violence against
workers in order to influence the outcome of an election;
threats to close the establishment if
a union is organized;
spying on union meetings; and
Illegal interrogation of workers.
Further, the employer cannot attempt to control or influence the
organization of a union by such means as financial assistance, or otherwise
favoring one union over the other in the election process.
The characteristics of U.S. law have permitted the courts to broaden
the application of the concept of unfair labor practices to include other
activities by the employer and union organizations. Examples of this are the
following interpretations by U.S. courts:
Questioning workers regarding their union sympathies, in such a
way as to influence their votes. (14)
Spy on workers, either directly or through supervisors, the
workers themselves, or people removed from the labor relationship.
On matters of dismissal, if the sole real reason for the employer
to terminate the employment relationship with the worker was the latter's union
activities, the conduct of the employer constitutes an unfair labor practice.
It is not a violation of the NLRA if the anti-union feeling of the employer did
not contribute to the termination for reasons imputable to the worker.(16)
Actions against unfair labor practices can be initiated by a worker,
an employer, a labor organization, or any person.
The authorities responsible for implementing the legal procedure
are: the NLRB through its different venues, the Federal Courts of Appeal, and
in some cases, the Supreme Court of the United States of America.
The actions of the NLRB can be described as those of a person acting
as both judge and party. A regional office of the NLRB receives the allegation
of an unfair labor practice, and, after evaluating the particulars, decides
whether or not to issue a formal complaint to begin proceedings.(17) Once the proceedings are initiated, the case
comes before an Administrative Law Judge (ALJ in its English acronym). The ALJ
is an official assigned to a federal agency who is considered semi-independent
in the exercise of his functions, and acts in accordance with U.S.
administrative law. (18)
The ALJ conducts a hearing in accordance with the procedural rules
for the District Courts of the United States. Once this procedural step is
completed, the ALJ issues a recommendation to the NLRB. This recommendation may
be reviewed by the NLRB if so requested by one of the parties. Otherwise, the
recommendation is considered final.
When there is a finding of an unfair labor practice, the Board can
issue a resolution ordering that the party desist in such conduct or directing
a remedy suitable to compensate the plaintiff, or both.
Final decisions of the NLRB can be appealed to the Federal Courts.
(19) Decisions of the Federal Courts can be
appealed, in some cases, to the Supreme Court.
- COMPENSATION FOR DAMAGES TO THE WORKER - INDEMNIZATION,
REINSTATEMENT, AND OTHERS.
The NLRA authorizes the NLRB to issue cease
and desist orders regarding behavior determined to be an unfair labor practice.
Furthermore, the Board can order that affirmative action be taken to compensate
for damages caused by an unfair labor practice, including the reinstatement of
workers, with or without back pay.(20)
In pursuing the objectives of the NLRA, the NLRB has, on some
occasions, taken actions such as requiring an employer to negotiate
collectively with a union, and, therefore, to recognize it as the exclusive
representative of its workers; disbanding an employer dominated union (white
union); or simply seeking a judicial order restricting the activities of the
employer where deemed necessary. An order of the NLRB to engage in collective
bargaining can be issued, in limited cases, even without previously holding an
- TEMPORARY MEASURES (INJUNCTION).
U.S. law contemplates the
possibility that the NLRB petition a District Court, concurrent with the
initiation of an unfair labor practice charge, for a temporary order
(injunction) that would prevent irreparable harm from occurring due to the
presumed illicit conduct.(22)
A District Court Judge can order that the practice in question cease
or can even order temporary remedial action such as the reinstatement of
Procedures initiated before a Federal Court are independent of the
investigation by the NLRB. Their intent is to prevent damages or harm which may
befall the parties due to the time period necessary to reach a final decision.
The NLRA does not establish exact criteria to be used by the
District Judge to determine the legal basis and nature of an injunction.
- CLOSURE OF A FIRM FOR ECONOMIC REASONS - PROCEDURES AND
OBLIGATIONS OF THE FIRM TO ITS WORKERS.
There can be no more extreme
expression of the termination of collective labor relations than the total
closure of the workplace. If this action is taken with the sole and exclusive
object of evading the exercise of the right of freedom of association and the
right to organize of the workers it will be classified as an unfair labor
practice under the NLRA.
In the case of the closure of a workplace, the workers who are
terminated generally obtain compensation from monies paid by the employer, for
a period of 26 weeks, as well as severance pay, seniority considerations, and
other payments which may have been negotiated in the collective bargaining
agreement. Unemployment compensation is calculated based on a formula and
requires that the worker comply with certain requirements in order to be
On the other hand, the Worker Adjustment and Retraining Notification
Act (WARN in its English acronym)(24) requires
that the employer refrain from ordering the closure of a plant or a mass
dismissal, until 60 days have passed after giving written notification to the
The concept "plant closure" is adequately defined in the
WARN act as a permanent or temporary closure of a workplace, or one or more
establishments or units of operation of a workplace or firm. The law covers
those closures which result in a loss of employment of 50 or more full-time
employees during the 30 days following the closure.(25)
In the case of the closure of a firm in violation of provisions of
the WARN act which is the subsidiary of another company that continues
operations, the parent company may be held responsible. This occurs in limited
cases where the relation between the two firms is so close as to constitute a
single enterprise.(26) A parent company which
does not grant autonomy to a subsidiary can prevent the latter from complying
with its obligations under the NLRA in matters of freedom of association and
the right to organize of workers.
RELATIONSHIP BETWEEN THE MATTERS OF LABOR LEGISLATION CONTAINED IN
PUBLIC SUBMISSION 9501/NAOMEX AND THE OBLIGATIONS OF THE PARTIES UNDER THE
The matters related to the law of the United States submitted to the NAO
of Mexico in Public Submission 9501/NAOMEX, concerning the freedom of
association and protection of the right to organize, are included in the labor
principles in Article 1 of the NAALC and in Annex 1 of the same. It is the
obligation of each of the parties to promote said principles and to guarantee
the adequate enforcement of the legislation directed toward this objective.(27)
Consequently, and in conformity with the procedures of the NAO of
Mexico, Public Submission 9501/NAOMEX was accepted for review.(28) The NAO of Mexico took the following steps to
obtain public information on the submission:
The NAO of Mexico requested consultations with the NAO of the United
States on laws and regulations, policies, and practices, in accordance with
Article 21 of the NAALC.(29)
The NAO of Canada and the Secretariat of the Commission for Labor
Cooperation, were notified of the aforementioned petition, in accordance with
The NAO of Mexico conducted an internal study of U.S. labor
Meetings were held with the heads of the General Directorate of Legal
Affairs and the Directorate of International Labor Affairs of the Secretariat
of Labor and Social Welfare, with the purpose of evaluating the information
related to the review;
Officials of the NAO of Mexico attended the Trinational Government to
Government Conference on Freedom of Association and the Right to Organize, held
in Washington, D.C., on March 27 and 28 ;(30)
Officials of the NAO met with the lawyers of the firm identified as
the protagonist in the labor matters which arose in the territory of the United
Officials of the NAO of Mexico participated in a meeting with the
National Consultative Committee, where the content of Public Submission
9501/NAOMEX and the information obtained were analyzed; and(32)
The NAO evaluated information submitted by the lawyers of the company
identified as the protagonist in the labor matters contained in the Public
The analysis of the information and the points of view obtained, as
indicated, permitted the NAO of Mexico to arrive at the conclusions which are
The review conducted by the NAO of Mexico consisted in obtaining and
analyzing information on U.S. labor legislation and its application. The
description of the laws, regulations, policies, and practices of the
authorities charged with the application of the law, principles, and rights,
furthered the understanding of the functioning of the U.S. labor system,
consistent with the objectives of the NAALC.
After studying matters related to U.S. labor legislation related to
Public Submission 9501/NAOMEX, particularly under the rubric of freedom of
association and the right of workers to organize, the NAO of Mexico is
concerned about the effectiveness of certain measures intended to guarantee
these fundamental labor principles.
During the analysis it became clear that legislators, and U.S. federal
authorities responsible for the application of legislation, give great
importance to these principles, and rights. The law that governs freedom of
association and the right to organize, is based on the premise that it is
necessary to guarantee these fundamental rights of workers so as not to affect
The interrelation which exists between open trade and its direct
influence on the life of workers, has been expressly recognized.(35) Consequently, there should be further study
on the impact that actions motivated by commercial realities have on labor
matters and vice-versa.
In view of the above, the NAO of Mexico emphasized in its analysis the
possible problems in the effective application of U.S. law, which could arise
when an employer refuses to negotiate collectively with a union elected as the
exclusive representative of the workers in the bargaining unit, or where the
employer refuses to permit that an election take place. Specifically, the NAO,
in light of the information obtained, was unable to assess with complete
certitude the effects on the rights of workers when an employer, suddenly,
closes the place of work.
The dynamism that characterizes present economic realities demands
consistency between the ideal of the law and its form and timing of
implementation. Only in this way can the objectives of the law be attained in
Reaffirming full respect for each country's
Constitution and internal laws, the NAO of Mexico considers it necessary to
further study the effects on the principles of freedom of association and the
right to organize of workers of the sudden closure of a place of work . For
this reason, it is recommended that a consultation take place at the
ministerial level, in accordance with Article 22 of the NAALC.
Mexico, Federal District, May 31, 1995
Miguel Angel Orozco
Secretary, NAO of Mexico
1. In general terms, United states law, whose nature and
evolution is eminently based on case law (it derives from English Common Law),
creates standards based on previous judicial decisions (precedents). An
important difference between case law and statutory law (legislation)legal
systems, is that the latter forces the judicial authorities to confine
themselves to the written law, with limited room for interpretation. A judge
may not freely review a statute, ignore it, or supplant it. In contrast, case
law is much more flexible
2. Legislation applicable in matters of union
organization is principally the National Labor Relations Act (NLRA in its
English acronym). United States Code, Title 29, Sections 151 et
3. Section 7, "Rights of Workers", NLRA.
4. The determination of whether an appropriate
"collective bargaining unit" exists is made by the National Labor
Relations Board (NLRB in its English acronym), which is an agency of the
federal government responsible for administering the NLRA. More information on
this body can be found in Part I, section 2, page 4, of this report.
5. For example, the Labor-Management Reporting and
Disclosure Act of 1959, as amended, establishes the requirements for
information which management as well as labor organizations must submit to the
Department of Labor of the United States.
6. Sections 3,4,5, and 6, NLRA.
7. Section 10, Paragraph e, "Petition to the Court
for the Enforcement of an Order, Procedures, Revision of Criteria," NLRA.
8. Information received from the U.S. NAO, page 7.
9. The United States is divided into 13 judicial
circuits, including the circuit of the District of Columbia and the Federal
District. Normally, appeals are heard by a panel of three judges, although on
some occasions all of the judges which make up the circuit court may meet in
plenary. The Courts of Appeals have jurisdiction over the majority of questions
resulting from decisions of the District Courts of the United States and of
federal agencies, such as the NLRB. Its decisions are final, except when they
are accepted for review by the Supreme Court.
10. Questions on the matter of union representation may
deal with the following issues:
- whether there exists or does not exist a desire by the majority of the
workers to be represented;
- whether the union previously recognized as the representative of the
workers continues to be supported by the majority of workers; and
- disputes on representation between two or more unions.
11. Section 8, "Unfair Labor Practices",
12. Section 9, "Representation and
Elections", paragraph c(3), NLRA.
13. Section 2 of the NLRA in relation to Sections 7 and
14. NLRB v. West Coast Casket Co., 205 F 2d. 902
(9th Cir. 1953). Information received from the U.S. NAO.
15. Consolidated Edison Co. v. NLRB, 305 U.S.
(1938). Information received from the U.S. NAO.
16. NLRB v. Transportation Management Corp.,
1983, 103 S.Ct., 2469.
17. If a Regional Office refuses to issue a complaint,
an appeal may be made to the Office of Appeals of the General Counsel of the
NLRB. This office can reverse or uphold the decision of the Regional Office.
This decision is not appealable within the administrative process.
18. The information on the question of the autonomy of
Administrative Law Judges was received from the information submitted by the
U.S. NAO, as well as the opinions of experts present at the Conference on
Freedom of Association and the Right to Organize held in Washington, D.C. this
19. The Court of Appeals has full jurisdiction on
decisions of the NLRB. It has the authority to open appeals proceedings to new
evidence when it finds it necessary, so long as such evidence was not submitted
during the original NLRB hearing for a valid reason. At the conclusion of its
review, the Court of Appeals issues a decision confirming, modifying, or
revoking the NLRB decision.
20. Section 10, "Prevention of Unfair Labor
Practices", paragraph (c), NLRA.
21. Information received from the U.S. NAO, page 4.
22. Section 10, paragraph j, NLRA.
23. Information received from the U.S. NAO, page 15.
24. United States Code, Title 29, Section 2101
25. Section 1, paragraph a(2), of the WARN Act.
26. Information received from the U.S. NAO, page 15.
27. Annex 1 of the NAALC, titled "Labor
Principles", defines the principle of Freedom of Association and
Protection of the Right to Organize as "the right of workers exercised
freely and without impediment to establish and join organizations of their own
choosing to further and defend their interests." The specific legislation
that regulates this principle in U.S. law, as established earlier in this
report, is the National Labor Relations Act administered by a federal agency
called the National Labor Relations Board (NLRB).
28. REGULATIONS OF THE NATIONAL ADMINISTRATIVE OFFICE
(NAO) OF MEXICO ON PUBLIC SUBMISSIONS REFERRED TO IN ARTICLE 16 (3) OF THE
NORTH AMERICAN AGREEMENT ON LABOR COOPERATION (NAALC),were issued during
February of this year and published in the Official Daily of the Federation on
April 28. Rule 1 of said regulation establishes the requirements for the
acceptance for review of a Public Submission.
29. The consultation with the U.S. NAO of March 22 of
this year concerned the following aspects related to freedom of association and
the right to organize in U.S. labor law:
- Unions - formation, composition, limitations, legal status.
- Union representation - election procedures, participation of workers and
employers, competent authorities;
- National Labor Relations Board - composition, functions, scope, and
- Unfair labor practices - the National Labor Relations Act, decisions and
administrative rules, federal legislation and related state legislation,
(authority, scope, and decisions); procedures (authorities, competence,
- Compensation for damages to the worker - indemnization and reinstatement;
- Closure of a firm for economic reasons - procedures and obligations of
the firm to its workers.
The U.S. NAO responded to the consultation on April 26.
30. The topics of the Conference were as follows:
- Organization of Workers and Elections to Determine Union Representation.
- Protection Against Anti-Union Discrimination.
- Procedural Actions and Guarantees.
- Union Democracy.
31. The meeting took place on March 29 in Washington,
32. The National Consultative Committee of Mexico for
the NAALC was constituted during 1994 with members from labor and business, in
accordance with Article 17 of the Agreement. The meeting was held on April 27
of the present year.
33. The information was treated as confidential.
34. Section 1, "Purpose of the Act", NLRA.
35. The signatory countries to the North American Free
Trade Agreement recognize this relationship in the preamble of the NAALC.