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Public Report of Review of NAO Submission No. 9703

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  1. FREEDOM OF ASSOCIATION

    1. NAALC Obligations and Mexican Labor Law

      1. NAALC Obligations

        The relevant articles of the NAALC as they pertain to freedom of association in the instant submission are Articles 1, 1(b), 1(d), 1(g), 2, 3(1), 5(1), 5(2) and 5(4).

        Article 1 of Part One of the NAALC lists the objectives to which the Parties commit themselves. Article 1(b) commits the Parties to the promotion, to the maximum extent possible, of the labor principles set out in Annex 1. The first principle is freedom of association and protection of the right to organize, which protects "the right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests."

        Article 1(d) states an objective of the Agreement is to:

        encourage publication and exchange of information, data development and coordination, and joint studies to enhance mutually beneficial understanding of the laws and institutions governing labor in each Party's territory.

        Article 1(g) commits the Parties to "foster transparency in the administration of labor law."

        Part Two of the NAALC sets out the obligations of the Parties. Article 2 addresses Levels of Protection and states:

        Affirming full respect for each Party's constitution, and recognizing the right of each Party to establish its own domestic labor standards, and to adopt or modify accordingly its labor laws and regulations, each Party shall ensure that its labor laws and regulations provide for high labor standards, consistent with high quality and productivity workplaces, and shall continue to strive to improve those standards in that light.

        Article 3(1) commits the Parties to effectively enforce their labor law through appropriate government action, including:

        (a) appointing and training inspectors;

        (b) monitoring compliance and investigating suspected violations, including through on-site inspections;

        (c) seeking assurances of voluntary compliance;

        (d) requiring record keeping and reporting;

        (e) encouraging the establishment of worker-management committees to address labor regulation of the workplace;

        (f) providing or encouraging mediation, conciliation and arbitration services; or

        (g) initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labor law.

        Article 5(1) states that: "[e]ach Party shall ensure that its administrative, quasi-judicial, judicial and labor tribunal proceedings for the enforcement of its labor law are fair, equitable and transparent and, to this end, each Party shall provide that:

        (a) such proceedings comply with due process of law;

        (b) any hearings in such proceedings are open to the public, except where the administration of justice otherwise requires;

        (c) the parties to such proceedings are entitled to support or defend their respective positions and to present information or evidence; and

        (d) such proceedings are not unnecessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays."

        Article 5(2) states in relevant part that "[e]ach Party shall provide that final decisions on the merits of the case in such proceedings are . . . (b) made available without undue delay to the parties to the proceedings and, consistent with its law, to the public . . . ."

        Article 5 (4) of the NAALC provides that "[e]ach Party shall ensure that tribunals that conduct or review such [labor] proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter."

      2. Relevant Mexican Law on Freedom of Association

        Freedom of association is protected by Mexico's Constitution. Article 19 states that "[t]he right to association or to hold meetings for any legal purpose cannot be curbed."(13) Article 123(A) establishes the framework for regulating labor matters in the private sector and protects workers from dismissal or reprisal by employers for union activities.(14)

        Mexican labor law in the private sector is codified as the Federal Labor Law (Ley Federal del Trabajo) (hereinafter FLL).(15) Relevant to the freedom of association issues raised in the instant submission are Articles 47 (dismissal), 133 (employer prohibited practices), 357-358 (right to organize) 371 (union by-laws) and 395 (exclusion clause).

        FLL Article 47 lists the causes for which an employer can dismiss an employee for cause. The list includes fifteen causes, ranging from falsification of the employment application to committing immoral acts to drunkenness on the job.

        FLL Article 133 lists prohibited employer practices, including obliging "workers by coercion or any other means to affiliate or withdraw from a union or group to which they belong, or vote for a determined candidate."(16)

        FLL Article 357 states that: "Workers and employers shall have the right to establish trade unions without prior authorization."

        Article 358 states:

        Nobody shall be obliged to join or abstain from joining a trade union.

        Any stipulation which prescribes an agreed fine for leaving a trade union is contrary to the provisions contained in the preceding paragraph and shall be null and void.

        FLL Article 395, known as the Exclusion Clause, states:

        A collective contract may stipulate that the employer shall admit to his employment only persons who are members of the trade union which is a party to the contract. This clause and any other clause laying down privileges in their favor shall not be applied so as to prejudice workers (non-members of the trade union) already employed in the enterprise or establishment prior to the date on which the trade union asks for a collective contract to be made or the revision of an existing collective contract with the inclusion therein of any such exclusion clause.

        It may also be established that the employer shall dismiss members who withdraw or who are expunged from the contracting union.

        According to the Mexican NAO, a worker who is the member of one union and requests representation by another union, may be terminated from employment using the exclusion clause.(17)

        Article 395 is regulated, however, by Article 371, which specifies that union by-laws must contain the provisions for expulsion or other disciplinary action of members, and states, in relevant part:

        The by-laws of the trade union shall contain:

        * * *

        VII. grounds and procedure for expulsion and disciplinary penalties. In the case of expulsion the following rules shall be observed:

        (a) a meeting of the workers shall be called for the sole purpose of informing them of the expulsion;

        (b) in the case of trade unions subdivided into sections the expulsion procedure shall be carried out at a meeting of the section concerned; the motion of expulsion shall be submitted to the workers of each one of the sections of the trade union for their decision;

        (c) the worker concerned shall be entitled to make a statement in his defense in accordance with the rules;

        (d) the meeting shall hear the evidence on which the motion of expulsion is based and the evidence shall be submitted to the worker concerned;

        (e) workers shall not be represented by proxy vote by correspondence or in writing;

        (f) expulsion shall be approved by the two-thirds majority of the total membership of the trade union;

        (g) expulsion may be decided only in those cases expressly stipulated in the rules, duly evidenced and exactly applicable to the case.

      3. Relevant Law on Labor Tribunals and Labor Tribunal Proceedings

        FLL Articles 604 through 624 establish the Conciliation and Arbitration Boards (CABs) as the primary authorities responsible for the adjudication of individual and collective labor-management disputes, union representation and jurisdictional disputes, and other disputes deriving from the employment relationship. Federal CABs have authority over industries specifically identified in the FLL, while local CABs, operating under the authority of the states, have jurisdiction over all other industries. All CABs, however, enforce the same national law - the FLL.(18) The Secretariat of Labor and Social Welfare may establish special CABs in different geographical locations with a geographic jurisdiction. The automotive industry is under Federal jurisdiction and authority in this case was exercised by Special Federal CAB No. 15 located in the State of Mexico.

        FLL Articles 625 through 675 govern the composition of the CABs. Each CAB consists of one representative from the government, who is the President, and one representative each from management and labor. A Secretary General, assisted by a support staff, manages the affairs of the tribunal. The Presidents are designated by the Secretary of Labor and Social Welfare in the case of Federal CABs, and by the Governors of the states in the case of local CABs, and serve for a term of six years. Labor and management representatives are selected in conventions held by their respective organizations conducted under the supervision of the federal or state labor authorities. They also serve for six-year terms. The FLL provides detailed procedures for convening the conventions, selecting delegates, and the election of representatives to the CABs. In practice, the largest and most representative labor organizations within the area of jurisdiction of the CAB are those represented on the CABs.(19) These unions are the large and established labor organizations, such as the CTM, CROM, and CROC.(20) The labor representative on Special CAB No. 15 was nominated by the CTM.

        FLL Article 671 lists causes for discipline or removal of employer and worker representatives in the CAB. Paragraph IX includes "voting for a resolution that is notoriously illegal or unjust."

        CABs have jurisdiction over a wide range of labor disputes from individual cases involving wrongful dismissal to collective cases involving union representation and strikes.(21) The Secretariat of Labor and Social Welfare estimates that Federal CABs heard about 53,000 cases during 1996.(22)

        Oversight and regulation of unions are exercised by the Secretariat of Labor and Social Welfare (STPS) and Federal CABs in the case of unions under Federal jurisdiction and by the local CABs in the case of industries under state jurisdiction. The CABs adjudicate jurisdictional disputes between competing unions.

        FLL Articles 892 through 899 prescribe procedures for adjudicating jurisdictional disputes; Article 895 provides for a representation election if appropriate to determine bargaining rights. FLL Article 899 states: "The provisions of Chapters XII and XVII of this Title shall be observed in all that is applicable to the special procedures in this Chapter." Articles 883 through 891 address procedures and time frames, relevant to this submission, in arriving at and issuing formal awards by the CABs.

        Article 873 of Chapter XVII states:

        Hearing of conciliation claim and exceptions. The Full or Special Board, within the 24 hours following the moment it receives the written petition, shall pronounce a decision in which it sets forth a day and hour for holding the conciliation hearing, petition, exceptions, offerings and admission of evidence, which must be carried out within the 15 days following the receipt of the written petition. In the same decision it shall order that the parties be notified personally at least 10 days in advance of the hearing, sending a copy of the petition to the defendant, and ordering that the parties be notified with the summons to the defendant, his affirmative answer to the petition and of the loss of the right to offer evidence if they do not attend the hearing.

        Article 874 states:

        Failure of notification of any or all of the defendants shall oblige the Board to stipulate ex oficio a new day and hour for holding the hearing, unless the parties appear or the plaintiff desists from the actions brought against the defendants who have not been notified.

        FLL Article 931 on the rules for a representation election (recuento) states:

        If a recount of the workers is submitted as evidence, the following rules shall be observed:

        I. The Board shall fix a place, date and hour in which it must be made;

        II. Only workers employed in the enterprise who are present when the recount is taken shall have the right to vote;

        III. Workers dismissed after the date of presentation of the notice of intention to strike shall be deemed to be employees of the enterprise;

        IV. The votes of workers in positions of trust and workers recruited after the date of presentation of the notice shall not be counted.

        According to the Mexican NAO, voting is conducted by open ballot in the presence of a representative of the CAB. Secret ballots are conducted only if the two contending unions agree.(23)

    2. International Labor Organization Conventions And Standards on Freedom of Association

      The submitters maintain that Mexico has failed to enforce ILO Convention 87 on freedom of association; Article 22 of the International Covenant on Civil and Political Rights; Article 23(4) of the Universal Declaration of Human Rights; and Article 8(1) of the International Covenant on Economic, Social and Cultural Rights.

      Conventions of the ILO are the most germane to the review of this submission. The relevant conventions are No. 87, Freedom of Association and Protection of the Right to Organize Convention, 1948, and No. 98, Right to Organize and Collective Bargaining Convention, 1949. Mexico has ratified Convention 87 but has not ratified Convention 98.(24) Convention 87 aims to ensure the right, freely exercised, of workers and employers, without distinction, to organize for furthering and defending their interests. Convention 98 provides for the protection of workers who are exercising the right to organize; non-interference between workers' and employers' organizations; and the promotion of voluntary collective bargaining. In general, the ILO Committee of Experts on the Application of Conventions and Recommendations has found that efforts by governments(25) and employers (26) to coerce workers or otherwise influence their choice of the organization to which they wish to belong are inconsistent with Conventions 87 and 98.

      The application of the exclusion clause, known as the closed-shop agreement in the U.S., is an important element of the submission. The exclusion clause is permitted under FLL Article 395 and usually provides that (1) an employer will hire exclusively members of the union; and (2) that workers who are expelled from the union will be dismissed from employment. The Committee of Experts has addressed the issues of trade union monopoly, unity and union security clauses, all of which are relevant to the exclusion clause as applied in this case and has attempted to strike a balance between trade union unity and the right of workers to choose their union. On the one hand, the Committee has found that union security clauses that require an employer to recruit only workers who are members of the union and for employees to remain union members to remain employed are compatible with Convention 87.(27) On the other hand, the Committee has stated clearly that, whereas unity is desirable, workers must be afforded freedom of choice. In this regard, the Committee stated:

      The right of workers and employers to establish and join organizations of their own choosing raises the problem of trade union monopoly. The difficulty arises where the legislation provides, directly or indirectly, that only one trade union may be established for a given category of workers. Although it was clearly not the purpose of the Convention to make trade union diversity an obligation, it does at the very lest require this diversity to remain possible in all cases. There is a fundamental difference between, on the one hand, a trade union monopoly established or maintained by law and, on the other hand, voluntary groupings of workers or unions which occur (without pressure from the pubic authorities, or due to the law) because they wish, for instance, to strengthen their bargaining position, coordinate their efforts to tackle ad hoc difficulties which affect all their organizations, etc. It is generally to the advantage of workers and employers to avoid proliferation of competing organizations, but trade union unity directly or indirectly imposed by law runs counter to the standards expressly laid in the Convention.(28)

      The Committee went on to state:

      Movements to group together may also occur among trade unions, independently of legislation or any pressure by the public authorities, when the workers or their unions join voluntarily in a single organization, for example in order to strengthen their position at the bargaining table or to better deal with structural reform or changes affecting their activities. In these circumstances, the committee believes that the same basic principle is applicable: Convention No. 87 implies that pluralism should remain possible in all cases. Therefore, the law should not institutionalize a factual monopoly; even in a situation where at some point all workers have preferred to unify the trade union movement, they should still remain free to choose to set up unions outside the established structures should they so wish. Furthermore, the rights of workers or employers who do not wish to join the existing trade unions or central organizations should also be protected.(29)

      The Committee of Experts has also commented on interference in workers' and employers' organizations by each other, stating:

      Article 2 of Convention No. 98 provides that workers' and employers' organizations shall enjoy adequate protection against any acts of interference by each other. It is important, therefore, that whenever it appears that there is insufficient protection against interference or that such acts do occur in practice, governments take specific action, in particular through legislative means, to ensure that the guarantees provided for in the Convention are respected and to give these provisions the necessary publicity to ensure that they are effective in practice.(30)

      The Committee considered that it is important that countries provide an objective means to determine collective bargaining representation in an enterprise, though it did not precisely specify how this should be done:

      Representativity may be determined by the number of members or by secret ballot. The Committee considers that, in order to encourage the harmonious development of collective bargaining and avoid disputes, it would be desirable to draw up and apply objective procedures which make it possible to determine the most representative trade unions for the purpose of collective bargaining when it is not clear which trade unions the workers would like to represent them.(31)

      ILO bodies have been consistent in criticizing employer efforts to control or favor one union organization over another. The Committee of Experts opined on an employer affording certain advantages to a union such as contributing to financing or making available premises or facilities:

      In the view of the Committee, while there is no objection in principle to an employer expressing its recognition of a trade union as a social partner in this manner, this should not have the effect of allowing the employer control over a trade union, or favouring one trade union over another.(32)

      In a complaint communicated to the ILO's Committee on Freedom of Association in 1975, the World Confederation of Labor (WCL) asserted that when it attempted to organize workers into a union at a the Spicer company in Mexico City, the company engaged in a campaign of pressure, physical, and other methods to dissuade the workers from disaffiliating from the existing union. The WCL alleged that the existing union:

      [p]rohibited meetings, sold permanent posts, invented deaths in order to check off supplementary contributions from the workers, and dismissed, along with the company, workers who made any kind of protest.(33)

      The WCL further asserted that the company threatened to dismiss workers and, subsequently dismissed a total of 650 workers after they went on strike. Following the intervention of the STPS, most, but not all, of the dismissed workers were reinstated. The dismissed workers, however, were paid the full indemnification to which they were entitled. The Committee stated that it considered that:

      the events as described by the complainants tend to show that the attitude and measures adopted by the company, including the dismissals, resulted in the commission of acts of anti-union discrimination which were motivated by the exercise of the workers' right to organize and action taken by them to defend this right.(34)

      The Committee went on to note the conciliatory intervention of the labor authorities in the case and recommended the Governing Body:

      ask the Government to examine what measures could be taken in order to provide fuller protection to workers against acts of anti-union discrimination and interference in the establishment of their organizations . . . (35)

      The Committee reviewed a complaint filed against the Government of India for violations of trade union rights in 1982. The complaint was made by the Centre of Indian Trade Unions (CITU) and alleged anti-union discrimination by management against tea plantation workers in the State of Assam, with the complicity of police forces, through such action as torture, unjustified dismissal, destruction of houses and property of trade unionists, and sexual harassment of the wives of union leaders. According to the CITU, the repression was for the purpose of pressuring the workers to leave the CITU affiliated union and return to the Indian National Trade Union Congress (INTUC), the largest union organization in the country which was closely associated with the dominant political party at the time, the Indian National Congress. The Committee noted:

      Normally, the Committee considers that a matter consisting solely of a conflict within the trade union movement itself is the sole responsibility of the parties themselves. However, a complaint against another organization, if couched in sufficiently precise terms to be capable of examination on its merits, may bring the government of the country concerned into the question, e.g. if the acts of the organisation complained against are wrongfully supported by the government or are of a nature which the government is under a duty to prevent.(36)

      In this case the Committee observed that the complainant did not provide detailed information to substantiate the allegations and the Committee did not possess sufficient information to continue its examination. The Committee went on to state, however, that:

      as regards the police violence in October 1980, the Committee draws the Government's attention to the principle that security of the person is one of the civil liberties which are essential for the normal exercise of trade union activities and expresses the hope that an inquiry into the police action will be carried out and will help to restore the situation to normal . . . (37)

    3. Analysis

      1. NAALC Article 3 Issues

        The allegations of violations of freedom of association protections made by the submitters fall into four categories. These are:

        1. Intimidation of workers, including surveillance, threats of closure, threats of dismissal, and dismissal of workers in the period leading up to the representation election in an effort to affect its outcome. These allegations are made against union officers of CTM Section 15 and supervisory employees of ITAPSA.

        2. Manipulation of the representation election process by Special CAB No. 15, so as to affect the outcome of the election in favor of CTM Section 15. This includes the postponement without notice of the election date; the conduct of the election on September 9, 1997, in an atmosphere of intimidation and violence where workers were required to state their union preference publicly in the presence of representatives of the employer, both unions (including alleged hired thugs of the CTM), and government representatives; and allowing access to the polls to individuals who may not have been authorized to vote without checking their credentials.

          Following the election, the submitters allege further manipulation of the adjudication process by Special CAB No. 15 in response to the efforts by STIMAHCS to challenge the outcome of the election. This includes allegations that STIMAHCS was not notified of a hearing; not informed of its proceedings; and denied the opportunity to present its case.

        3. Retaliatory dismissal of workers who supported STIMAHCS and, following the reinstatement of a number of these workers by the CAB, through the application of the exclusion clause by CTM Section 15.

        4. The physical attack on dismissed employees of ITAPSA and employees of American Brakeblock who were demonstrating outside the premises of American Brakeblock.

        The Echlin Corporation challenged these allegations. In its written statement of March 18, 1998, the company argued that allegations of retaliation against and dismissal of employees for their support of STIMAHCS are false; that several workers who alleged termination were reinstated by the CAB only to be terminated for violation of Clause 10 of the collective bargaining agreement and Article 365 of the FLL; and that no acts of violence or intimidation took place during the balloting on September 9 that could have altered the outcome. Echlin maintains that any intimidation prior to and during the representation election was initiated by STIMAHCS and its supporters, and that the strategy of the FAT and STIMAHCS "has been and continues to be one of distortions, misrepresentations, and lies."(38)

        The Mexican NAO stated that the Federal CAB has no information concerning allegations of intimidation against workers at ITAPSA by either the CTM or the company management. Further, the CAB has no record of violence or intimidation occurring during the representation election and the Mexican NAO, therefore, concludes that the instances of violence and intimidation described in the submission did not take place. The Mexican NAO also stated that workers who allege they were dismissed in reprisal for their support of STIMAHCS have recourse to the Federal CAB to pursue individual actions.(39)

        1. The Representation Campaign

          The submitters support their argument with written affidavits and testimonial evidence from workers involved in the case. Twelve workers signed affidavits attesting to intimidation and surveillance by both management and the CTM prior to the representation election, dismissal in retaliation for supporting STIMAHCS, the postponement of the August 28 election, and the circumstances surrounding the representation election on September 9, 1997. The affidavits and testimonial evidence are consistent in their description of events. With regard to the events prior to the election, Mr. Celestino García Luna stated:

          We knew we were being watched by the supervisors and the CTM delegates in the plant. They knew who the supporters of the union were. The reason I knew that we were being watched is that every time we as workers who supported STIMAHCS would get together in the plant, one of the bosses would immediately come over to where we were.(40)

          Mr. Gildardo Hernández Lopez testified that:

          On or about the first week of August, Roberto, the CTM delegate in the factory, came by my work station and asked me if I knew anything about union activity in support of STIMAHCS. He told me that if we voted against the CTM the company would close the plant or fire some of the workers involved in helping STIMAHCS in the shop. He said this to other workers as well.(41)

          In a written affidavit, Mr. Juan Miguel Parada León stated:

          Between May 26 and August 28, 1997, many more workers were fired. August 28, 1997 was the scheduled vote for the union. I knew that a woman named Verónica was fired for her union activities, and she was the first of the five workers fired. The company told her that she was being fired for union activity, and she told us in a union meeting because a fellow worker had gone to the company to tell them that she was involved in union organizing. After her they fired another worker, Rubén Ruíz Rubio, on or about July, 1997. Rubén reported to us that he was told by a engineer from American Brakeblock that he was fired for his activism in support of STIMAHCS. American Brakeblock is part of ITAPSA. I saw that Rubén was called to this manager's office and afterwards he told me that he was fired. The other workers fired were David Gonzalez, a man named Alejandro and María Trinidad. I believe that these three who were fired in late July or early August were fired to intimidate the rest of the STIMAHCS supporters in the shop. I worried that I might be fired.(42)

          Mr. Rubén Ruíz Rubio became active in the STIMAHCS organizing effort. In his written affidavit, Mr. Ruíz stated:

          In between when the demand was filed on May 26th, 1997 and the date of the initial vote on August 28th, 1997, the company fired about 50 workers. Many of the people who were fired were involved in organizing, but also many of them weren't. I believe they were just fired to intimidate the workers to stop us from supporting STIMAHCS.(43)

          Mr. Ruíz testified at the hearing on the intimidation prior to the representation election:

          In early June, and when the company was notified that there had been this request [representation petition], it started harassing the workers. We were called in one by one, into the offices, and we were asked who was involved in this movement. When they received no answer from the workers, the company started firing workers, trying to guess who the responsible individuals were.(44)

          Mr. Ruiz went on to testify on shift changes and intimidation in response to his union activities and his eventual dismissal.(45)

          Ms. María Trinidad Delgado Navarro, who also became active in the organizing testified that she was subjected to surveillance by the company and the CTM at her home:

          [A] few days before the election, right outside my house, a green car was parked in front of my house and remained there for about an hour and a half, right in front of my house. This car had two people inside and I started to get real scared because I had been watched before by other people who had been hired by the company.

          I started getting even more afraid when I realized that the car was going in and out of the company in the morning, at night, and in the morning it went in and out and I recognized it afterwards. I hadn't realized it originally, but I realized afterwards, and I got really panicky. I felt that the reason they were doing this was to make me stop my union activities because I was always leafleting with my fellow workers who were still in the company.(46)

          Ms. Delgado also testified on intimidation within the plant:

          When the company and union realized that we were organizing a movement, we were called one by one to be verbally or psychologically intimidated. We were told many things. Personally, I was told not to get involved in that union movement because we were not acting right. We were told that if I lost my job because I was someone who did not have a permanent job in the company, what was I going to do? How was I going to get my children ahead in life? How was I going to be able to get the money to feed them and educate them? That's how they put it to me.

          And they also told me that we had to think of all the other people who were older and who were not going to find jobs that easily if they were dismissed, and especially taking into consideration their age.(47)

          Ms. Delgado was subsequently fired from her job.

          Mr. Joaquin Hernández Alanis testified on the cancellation of the election scheduled for August 28:

          On or about the 28th of August at about 11:00 during the time the union election was supposed to take place, I was called into a meeting with all of the workers from the morning shift. The meeting was led by Aceves, the representative of the CTM. In this meeting he emphasized that there would be no election today and that STIMAHCS had let us down and how can we support such a weak union. At one point during this meeting Aceves singled me out saying that the CTM doesn't buy people with tacos as Alanis says. I felt that Aceves said this because he wanted to make sure that I and all the other workers knew that the CTM and ITAPSA were watching us and that our jobs were at risk and to discourage us from organizing with STIMAHCS.(48)

          Mr. Benedicto Martinez Orozco, Secretary General of STIMAHCS, submitted a written affidavit and testified at the public hearing. On the sudden postponement of the August 28 vote, Mr. Martinez stated:

          [A]t eleven o'clock in the morning, on the 27th of August, the CTM requests that the election be canceled, saying that it had not been notified and interestingly enough, the CAB agrees to that request and cancels the representational election on August 28th.

          By that time we had convoked the second shift and third shift workers to come to the plant at the earlier time in order to vote. It's very important to stress this because the law states that only workers who are present may vote, and for us organizing these workers meant really gathering all of these workers and having them be present, even those who come in at ten o'clock at night, they had to make a special effort to show up at eleven o'clock in the morning which was the time set for the election.

          I was very worried at that time because I all of a sudden understood the trick that they were playing against us and our workers. They were trying to keep them busy and prevent the workers who were trying to change unions from coming, because they are the ones that are going to vote. The company through its workers -- some of its workers -- was also filming everybody who was arriving. So that's the trick that they were using to discover who were the more active members in our union in order to be able to fire them.(49)

          The Echlin Corp. denies that any workers were dismissed for their support of STIMAHCS or that ITAPSA otherwise intimidated or retaliated against its employees. However, Echlin acknowledged in its statement that a number of workers were reinstated following the CAB's order or elected to accept severance pay in lieu of reinstatement. Echlin's statement is unclear as to the reasons for the dismissal of these workers in the first place. The timing of the dismissals and the circumstances surrounding the representation campaign, however, raise questions as to management's motives. The statements and testimony of workers appear to be consistent and credible. The dismissals and retaliation described herein are consistent with those described in other submissions dealing with union representation reviewed by the U.S. NAO.(50) The Mexican NAO did not provide information on the ITAPSA related CAB cases which precludes a full examination of the reasons and circumstances of the dismissals of the workers and the basis for the CAB's decision in ordering their reinstatement.

          FLL Article 133(IV) prohibits employers from attempting to influence workers' affiliation or withdrawal to or from a union or to support a particular candidate. The information reviewed by the NAO is strongly indicative that the company engaged in prohibited activities, including surveillance, threats and intimidation, and outright dismissal, for the purpose of affecting the outcome of the representation election.

        2. The Representation Election

          Written affidavits and testimonial evidence describe an atmosphere of intimidation and potential violence at ITAPSA on the day of the representation election on September 9, 1997. Mr. Gilberto García Galicia stated that:

          I arrived at the factory with many other fired workers at around 8:00 a.m.(51) We met in the area outside the factory. There was a big group of people from the CTM whom I had never seen before. We call them "golpeadores" or hired thugs. They were standing outside the factory. They said that they didn't care if there was an election or not and that it would be better for us if we left. There was a group dressed in the northern style who looked like cowboys and another group not as well dressed who looked like street thugs and trouble makers. We decided to move away down the street a little way to avoid trouble.

          At about 11:00 a.m. we returned to the front of the factory when the representatives of the government arrived. After the representatives of the government entered the factory, I and several other fired workers climbed on top of a truck parked outside the factory. From the top of the truck we were able to see over the factory wall. We saw many of the CTM thugs carrying thick sticks and pipes. We also saw many people from the third shift still inside the factory even though their shift had ended many hours early.(52)

          Mr. Guillermo Hernández Márquez stated:

          On September 9th, 1997 I arrived at the ITAPSA factory at 8:00 a.m. in the morning and I saw that there were about 50 persons who I did not recognize as workers of ITAPSA standing out front of the factory. I also saw one person on the roof with a rifle hanging from his shoulder. We moved away from the plant because other supporters of STIMAHCS said that these persons had threatened them. We gathered together to go to the factory together to defend ourselves from those who were threatening us. We went together at about 9:00 a.m.

          When we returned to the factory, there were about 100 people with an aggressive attitude standing out front. Some of them appeared inebriated or drugged because their behavior was aggressive and strange. Some of them had blood shot eyes. Later a man with a black hat come out who I had not seen before either, and ordered them to come into the factory. They threw plastic bottles at us from inside the plant and would yell out insults.

          I and other fired STIMAHCS supporters waited outside during the voting. We had hopes that we would be allowed to enter but that was not the case. The JFCA [CAB] authority came out of the factory to take our votes. At about 12:00 p.m. the official came out to take our vote.(53)

          Ms. Delgado described the scene at the plant on the day of the representation election:

          Before the voting started, a few minutes before we returned, we saw the same people that we had seen in the morning, and some more who were on top of the walls, and even more people who were carrying some communicating devices . . . in a very aggressive attitude against us. They were looking at us in a threatening way and yelling things at us, and throwing things at us -- bottles and trash.

          And we saw the labor authorities arriving with our lawyer and the secretary general to go into the plant so that the election could take place. To our surprise, we saw that as they came close to the door, they were denied entrance, and we even saw that the person who was representing the labor authority was not being allowed to go in and we thought that the election was not even going to take place again. We didn't know what was going on though.

          But fighting and continuing -- they finally spoke or were allowed in. We went on -- into -- onto a very high car and were able to see what was going on inside, because we were worried for the people who were still inside and working, and were going to be voting because the company put on these sort of loudspeakers with terribly loud music, and it was impossible to hear what was going on inside.(54)

          She also described the effect this had on her fellow workers:

          We climbed onto the car and we saw a large number of people inside with clubs and sticks . . . I don't know what exactly they were being told, but our fellow workers were really panicky. They were scared. We'd never seen such fear in anybody's face. They were really scared.

          The people were yelling to us from inside --something that we couldn't hear unfortunately, but we imagined from the expressions on their faces that they were yelling rude things at us, and cussing, and they were making a lot of noise, and they were receiving all these orders from the gentleman with the black hat, who was telling them and shoving them places, and then they would go to the places he pointed to.(55)

          STIMAHCS Secretary General Martinez described the representation election as follows:

          We finally were able to enter [the plant property] with the authorities, and when we did so, we found to our surprise that in the yard of the plant there were more than about 150 people -- it was full -- they had clubs and pipes -- metal pipes, and they were verbally threatening us with signs in their hands and saying that they had the photographs showing us, that it meant we were going to be killed.

          And we start forcing our way in and finally reached the office where the representation election was going to take place. For some of us who participated in any of these representation elections -- I don't want to say we're used to it -- we're still afraid, but the first thing that comes to mind is how would the workers feel when it's their first experience of an election like this? And when we've told them that they have the right enshrined in the law and that it's not illegal, and they find themselves with circumstances like that?(56)

          Mr. Martinez described the scene inside the room where the balloting was to take place:

          The first agreement we reached [with CAB officers and CTM representatives] was that we insisted the authority get rid of any of the people that were alien to the company from the office where the agreement was going to be discussed. There was 20-30 people that had nothing to do there in this small office which was maybe four times five meters large, and the first agreement was that only three of each one of the organizations -- three from the CTM, three from us and three from the company -- we were the only ones to be allowed to go in.

          Well, we thought we had progressed, we had an agreement. We thought that they were going to comply with the agreement, and when the representation election begins, we find to our surprise, that the office is full of these thugs, and there's only three of us.

          Right then we asked the authorities [CAB officers] that we interrupt the elections under those circumstances and that they are in the obligation of suspending the representation election because there's threats, there are acts of violence because throughout the process and the discussion we felt the threat personally, and our brother David was finally struck -- were always threatened that we were going to be hit and we were constantly being threatened and we were asking them to suspend the election because it was impossible to carry out the elections under those circumstances, and the workers had to go one by one to cast their vote in front of all these people.

          I don't know whether the authorities were disregarding what we were saying or were closing their eyes to what was going on, it seemed to us that they were in some other world because they continued the process. We continued to insist. The first worker comes in and the thugs formed like a whole corridor for them to go through, and the legal counsel of the CTM union is the one who goes and asks for the credential to bring him in, to identify himself at the election table and we protest. We say that cannot be done. You are forcing them, you're intimidating the worker to vote and then he knows who's in control. He knows who's there and that's forbidden, we insist.

          And yet they do it. And the authorities do not object to this. They continue to carry out the process under those circumstances.

          Another event that took place was that we received a general list of workers . . . and for me it was impossible to check which -- whether the worker that was casting his vote was a worker or not. There were three actuaries who were there, and I was alone because the lawyer was on one side and David was trying to make sure that they didn't hit the brothers that were elsewhere, doing other things that we had asked them to do. So it was really very difficult to make sure that those who were casting the vote were really the workers who had a right to do so.(57)

          Mr. Rubén Ruíz spoke of the balloting and the aftermath:

          We were very afraid, by the way, because we were outside and we imagined the people inside would have been even more afraid. We were totally confused. We knew that it would be difficult to beat the company and the union, but we were sure that we were going to win the election because most of the people -- 70 percent, 80 percent of the people had told us they would vote for us. They were sure. We were sure as well.

          But given the circumstances, fear gained the upper hand. They didn't vote for the reasons that Mr. Martinez has given you, and we also were afraid. When we voted, we were shaking. We were shaking in fear because we voted in the presence of the actuary and the secretaries general of both unions, and of the thugs, and they were insulting us and calling us names. We were very scared.

          But the group outside felt a little safer, but we were still very -- very afraid. After the election, the Secretary General came out and said that we had lost.

          This was a disaster. We were very sad. We felt miserable. We didn't know what to do and we didn't know what solution to adopt or what to do next.(58)

          Mr. Martinez stated STIMAHCS filed objections to the conduct of the election:

          And under those conditions, we finally concluded the representation election. Immediately in the minutes -- we stated that we object to the procedure and it's set down in writing and all the parties signed. We objected to the whole procedure because it was carried out incorrectly because there are a series of violations of all rights, and a violation of the procedures itself . . . ."(59)

          The official minutes closing the election proceeding include this statement that the election was conducted in an atmosphere of violence and intimidation in the presence of hired thugs of CTM Section 15. The document records the statement of the Section 15 representative that the allegations made by STIMAHCS are false and that the CAB should certify the results of the election. The representatives of the CAB made no statement of their own as to the facts. However, press accounts in two of Mexico's major daily newspapers, La Jornada and El Universal, stated that the workers of ITAPSA were practically held hostage in the plant and required to vote in the presence of 170 armed thugs.(60)

          There is considerable testimonial evidence of efforts by CTM representatives and agents to intimidate workers during the conduct of the representation election. The testimony and other evidence is consistent, convincing, and disturbing. Workers were expected to demonstrate their union preference through a voice vote, in the presence of management and CTM Section 15 union representatives, who had threatened them with dismissal and already dismissed a number of workers, as well as representatives of STIMAHCS and the CAB. Further, workers were aware that the union could request their dismissal from employment, and the company would be required to comply, for supporting an opposing union. Aggressive thugs, armed at least with clubs, were present to intimidate workers and make it impossible for the STIMAHCS representatives to verify the credentials of workers who were voting. Finally, CAB officials allowed the proceedings to continue despite this atmosphere of violence and intimidation.

          FLL Article 133(IV) prohibits employers from attempting to influence workers' affiliation to, or withdrawal from, a union or to support a particular candidate. Article 358 states that nobody may be compelled to join or withdraw from a union. The information reviewed by the NAO is strongly indicative that CTM Section 15 engaged in threats and intimidation for the purpose of affecting the outcome of the representation election. It is also apparent that the company at least condoned this intimidation by providing access to the plant premises for supporters of CTM Section 15, who were not employees of the company, before and during the election.

          In its letter to the U.S. NAO, Echlin acknowledged that a number of workers successfully challenged their dismissal from ITAPSA:

          Eleven workers, who alleged termination, filed a suit before the JFCyA [CAB] requesting reinstatement to their former positions and were subsequently reinstalled by the company under the same terms and conditions.(61)

          In the same letter Echlin stated that "Allegations of retaliation and dismissal of 50 employees are false." The NAO is unaware of the arguments submitted to the CAB or of the rationale of that tribunal in ordering the reinstatement of the workers. However, in ordering the workers to be reinstated it would appear that the CAB undertook the appropriate enforcement under Mexican labor law regarding the unjustified dismissal of these eleven workers. According to the submitters, the other fired workers accepted mandated termination payments rather than challenge their dismissals.

          In ordering the reinstatement of the workers the CAB provided the appropriate remedy in the individual cases. However, in addressing the complaints as individual cases of unjustified dismissal the CAB apparently did not consider the impact the dismissals had on the collective labor relations at the plant and whether the company engaged in prohibited activity under FLL Article 133. The decision did not address the effect that the alleged employer interference through surveillance, intimidation, and threats may have had on the outcome of the representation election. The timing of the dismissals in the period leading up to the election, combined with other action by employer representatives together with representatives of CTM Section 15, could have significantly affected workers' votes. The reinstatement of these workers several weeks later occurred too late to provide redress to STIMAHCS for its election loss. While STIMAHCS filed objections to the conduct of the election, it is not clear if the dismissal of the workers and other actions by the employer during the period leading up to the election were included in the STIMAHCS petition. Nor is it clear what remedy Mexican labor law provides in these types of situations.

          The conduct of the representation election raises questions as to the motives of of the company in affording access to the plant's premises to a large number of supporters of the CTM. The aggressive behavior of the CTM supporters, supported by substantial evidence, leaves little doubt as to their intentions. Also troublesome is the actions, or absence of action, on the part of the CAB representatives who were present.

          Workers were required to vote by declaring their preference openly in the presence of representatives of both unions, management, and a large number of aggressive and vociferous Section 15 supporters. Secret ballots are provided for, apparently, only if the two contending unions agree.(62) Yet, the U.S. NAO has been unable to locate any legal basis either providing for or precluding the use of a secret ballot in a representation election. Whereas a secret ballot election may not be the preferred solution to determining union representation in Mexico, it appears that the CAB could have done more to ensure that the balloting took place under conditions more favorable to protecting workers' freedom of choice.

          Further, the practice of having management representatives present is not provided for in the FLL. The Mexican NAO has stated that such voting takes place in the presence of a CAB representative (63) but the practice is to conduct voting in the presence of labor representatives from the contending unions and management representatives as well.(64) The FLL, however, is silent on who should observe balloting and the NAO has found no legal basis providing for the presence of anybody other than representatives of the CAB. The presence of union representatives is compatible with the conduct of a fair and orderly representation election in order to permit the verification of workers' voting credentials and challenges to the validity of ballots. Management is present, presumably, because it is a party to the proceedings for representation. However, the presence of representatives of a management that has made its union preferences clear, combined with the open character of the voting, may well affect the voting of workers. Finally, the presence of a large of number of vociferous supporters of one union (or both, for that matter) at the polls is not conducive to the security, orderliness, and equity of the election process and can only have a negative impact on the exercise of freedom of association by workers.

          The submitters allege that it was not possible to verify the identity and credentials of many voters, and, therefore, many votes were cast by individuals not employed at ITAPSA. This is not a surprising development in view of the atmosphere that prevailed at the polls. Such charges have been made in other representation elections, including one recently reviewed by the U.S. NAO.(65) FLL Article 931 is explicit in providing that only workers employed at the enterprise may vote, including those who were fired after the filing of the petition for representation. Workers in management positions and those hired after the date of the filing of the representation petition may not vote.

        3. Post Election Developments

          The submitters maintain that in response to the objections filed by STIMAHCS on the day of the representation election, the CAB scheduled a hearing for September 23, 1997, to hear petitions, exceptions, offerings and admission of evidence. The submitters further assert that STIMAHCS was not notified of the hearing in advance, that it took place without representation from STIMAHCS, and that the details of what occurred at the hearing have not been made available. In its response to the U.S. NAO inquiry, the Mexican NAO stated:

          [F]ollowing the election on September 9, 1997, the Board summoned both parties to a hearing for the presentation of evidence with respect to the objections formulated in the official record of such proceedings, which were entered in the record by the clerks empowered to do so, which hearing was not attended by the petitioning union, despite the publication of an advance notice of the hearing in the official bulletin of the labor tribunal, which is put out daily. The petitioner subsequently attempted to challenge the form in which it was notified of the hearing, claiming that it should have been served with personal notice of the hearing by the clerk. However, in any event, the fact is that it failed to regularly consult the bulletin, subsequently endeavoring to remedy this situation by raising a strictly technical procedural issue which, while it may be applicable according to Mexican law, has absolutely no relevance whatsoever to the alleged historical fact in this case.(66)

          FLL Article 873 clearly requires the personal notification of the parties to a hearing on the presentation and admissibility of evidence as in this case. The failure to notify an interested party of an administrative hearing in which it has an interest does not appear to constitute simply a technical issue. Article 874 provides that in the case of failure to notify a party, the CAB must set a date for a new hearing, unless the parties agree to abide by the decision of the hearing in question. It appears that this is the remedy that the Federal Circuit Court found appropriate in this case.

          The submitters state that when STIMAHCS attempted to file an amparo appeal with the appropriate Federal Court shortly after the representation election, the court initially declined to hear the case on the ground that this would be premature as the CAB had not yet issued a final decision confirming the results of the election. According to the submitters, the CAB issued its decision on December 4, 1997, confirming CTM Section 15's victory. STIMAHCS filed an amparo appeal on February 25, 1998. The Court issued its decision on the amparo in June and found in favor of STIMAHCS. A new hearing is scheduled to be held before the CAB in August. However, ten months have elapsed since the representation election took place. During this period, the status quo has continued at ITAPSA.

          Four of the workers fired prior to and following the representation election submitted affidavits stating that they filed for reinstatement with the CAB alleging wrongful dismissal. According to their testimony, the four, and six other dismissed workers, were ordered reinstated to their jobs by the CAB. However, when they attempted to return to work, they were informed by the company that CTM Section 15 had invoked the exclusion clause against them and they were again fired.(67)

          The statement of the Echlin Corporation supports the testimony of the workers with regard to the application of the exclusion clause. Echlin stated that the CAB ordered the reinstatement of eleven workers who alleged termination. After the company did so, however, the union requested that they be removed from their positions for violating clause 10 of the collective bargaining agreement and article 365 of the FLL. Article 365 addresses the documents required for a union to obtain registration. Article 395 allows for including the exclusion clause in the collective bargaining agreement. In this context, the issue is the application of the exclusion clause by CTM Section 15 and their consequent dismissal by ITAPSA.

          The exclusion clause is a powerful and controversial tool for enforcing union discipline in Mexico.(68) Its legality has been upheld by the Mexican courts, which have also ruled that an employer is not obligated to verify if the union in question has applied the clause in accordance with the FLL and its own by-laws. However, the exclusion clause is regulated under FLL Article 371, which establishes the procedures for the expulsion of members from the union and establishes a measure of control on the application of the clause by providing that a member can be expelled only if his behavior is explicitly prohibited in the union by-laws, that he be afforded the opportunity to defend himself, and that a 2/3 vote of the union membership in favor of expulsion is required.

          The CAB's have jurisdiction to determine if the exclusion clause has been applied correctly and can order the reinstatement of a worker to the union and, therefore, his job in those cases where the clause has been applied illegally. The Supreme Court of Mexico has reviewed CAB decisions on the application of the exclusion clause and issued a number of rulings on different aspects of the clause. In a decision establishing jurisprudence, which is binding on the lower courts, the Supreme Court ruled that a union is bound by the requirement that at least 2/3 of the union membership vote for expulsion of a member, in accordance with FLL Article 371, and the union must follow strictly its own bylaws in such proceedings.(69) In another ruling which established jurisprudence, the Court ruled that only the minutes of the meeting in which the expulsion was voted, showing the attendance of members, authenticated by their signatures, constitute sufficient evidence that the vote was conducted in accordance with the law.(70)

          In a decision dated August 15, 1988, the Court found that the application of the exclusion clause because of the way workers may have voted in a representation election amounted to a reprisal for exercising a constitutional right.(71) Though this decision does not constitute jurisprudence it may be used as guidance and raises a serious question on the appropriateness of applying the exclusion clause against workers who vote the wrong way in a representation election.

          It is difficult to reconcile the dismissal of workers for their support of a particular union in a legally authorized representation election with the principle of freedom of association. Mexican labor law goes out of its way to enunciate and protect the right of workers to join the union of their choice without restriction or reprisal. Article 19 of the Constitution states that the right of association cannot be curbed. Constitutional Article 123(A) protects workers from dismissal for their union activities. FLL Article 47 protects workers against unjustified dismissal. FLL Article 133 lists as a prohibited practice an employers' attempts to "influence workers by coercion or any other means to affiliate or withdraw from a union or group to which they belong, or vote for a determined candidate." Article 358 states that nobody shall be obliged to join or refrain from joining a trade union and prohibits any stipulation of a fine for leaving a trade union.

          While Article 395 does provide for the application of the exclusion clause, the interpretation given by the Mexican Supreme Court would restrict its use, at least with regard to a representation election. Furthermore, Article 371 provides clear and precise procedural rules for the application of the exclusion clause. The submitters maintain that the procedures were not followed and this is supported by the affidavits of the workers against whom the clause was applied. Without oversight and controls, the exclusion clause may constitute a serious threat against the rights of workers and the principle of freedom of association. The matter becomes especially problematic when the labor representative on the tribunal that adjudicates such cases, in this case Federal CAB No. 15, is a member of the union organization which is applying the clause.

          An ancillary issue to freedom of association emerged in the review of this submission: that of union representation and collective bargaining agreements. There is testimonial evidence that workers at the plant had never seen copies of the collective bargaining agreement in effect at ITAPSA, were not familiar with its contents, and some were even unaware that they belonged to a union, CTM Section 15 in this case.(72) Similar allegations were made in previous submissions reviewed by the U.S. NAO(73) and allegations have been made that the practice of negotiating such "protection" contracts without the consent, or even the knowledge, of workers is widespread in certain regions of Mexico. (74) The Mexican STPS has begun efforts to improve transparency by providing information through publishing a register of legally registered unions and making the information available on its internet website. The information includes names of unions, registration numbers, dates of registration, addresses, names of the secretary general, membership, type of union, branch of industry, and national affiliation. However, the information provided is insufficient to ascertain union representation at the company level or the contents of the collective bargaining agreement. While collective bargaining agreements must be registered with the appropriate CAB, the law does not impose an obligation on a union to share copies of the agreement, or information on its contents, with union members. From the review of this case and others,(75) it appears that in some cases few workers obtain copies of their collective bargaining agreements or are familiar with their contents.

        4. The Violence Outside American Brakeblock

          The physical assault on workers who were distributing pamphlets outside the American Brakeblock plant on December 29 is an ancillary, but relevant, issue. The submitters support their allegations with two written affidavits and the oral testimony of one worker at the public hearing. Mr. Jose Luis Mendoza Hernández, an employee of American Brakeblock, stated that after he completed his shift on December 15, 1997, he stopped and spoke to workers from ITAPSA who were handing out leaflets outside the plant when he was approached by a CTM representative. Mr. Mendoza then described the episode:

          I got out my wallet and was showing them my employee card, when I heard Antonio [the CTM representative] yell "Kick all their asses" (Dales en la madre a todos!), and I saw a metal gleam out of the corner of my eye. I turned my head and saw a fist with brass knuckles coming towards me. I reflexively turned my head back the other way as I was struck in the right side of the head above the ear. The blow glanced off a little bit and cut me above my right eye. Fortunately, I was turning with the blow or my skull could have been fractured. I was struck again as I fell over a bit and lost consciousness.(76)

          According to Mr. Rubén Ruíz, the assault on Mr. Mendoza and four others took place in the presence of company management of American Brakeblock as well as CTM representatives. After notifying the police at the scene Mr. Ruíz and his colleagues were initially arrested for perpetrating the violence and released shortly thereafter. The police did not pursue the perpetrators into the plant claiming they lacked the authority to enter the premises of American Brakeblock. Mr Mendoza and the others filed a criminal complaint against the company. Mr. Mendoza was fired on December 29, 1997. He believes that he was fired because of the complaint.(77) Photographs of a battered Mr. Mendoza were submitted to the NAO.

          The events described are troubling. The principle of freedom of association is not restricted to employees within a workplace, but includes workers and their representatives engaged in lawful informational and organizational activities. It is not clear from the information available if the Mexican authorities have undertaken the steps necessary to investigate the matter and to protect the rights of workers to conduct lawful organizational and informational activities in public places.

      2. NAALC Article 5 Issues

        The submitters argue that Mexico is not in compliance with NAALC Article 5(4) which states:

        "[e]ach Party shall ensure that tribunals that conduct or review such [labor] proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter."

        Article 5(1) on labor tribunal proceedings and Article 5(4) on the timeliness of final decisions of labor tribunals are also relevant to this submission.

        Special Federal CAB No. 15 is composed of three members, representing labor and management, and presided over by a government representative, as are other Federal and State CABs. The labor representative at the time of the election campaign and representation election came from the petrochemical workers union of the CTM and was nominated to the CAB by the CTM .

        CTM Section 15 is an affiliated organization of the CTM, and it would appear that the CTM has an interest in maintaining union representation rights at ITAPSA. In this sense, at least one CAB official had a substantial interest in the outcome of the cases before it. These cases include (1) the conduct of the representation election between STIMAHCS and CTM Section 15; (2) the petitions for reinstatement of the workers dismissed for their union activities in favor of STIMAHCS and against CTM Section 15; (3) the objections to the election results filed by STIMAHCS against CTM Section 15; and (4) the petitions for reinstatement by workers filed against ITAPSA and CTM Section 15 asserting the wrongful application of the exclusion clause.

        Several aspects of the representation election raise questions as to the impartiality of the presiding CAB representatives. These include the atmosphere of intimidation and threats that prevailed, allowing the presence of a large number of individuals of threatening appearance and doubtful purpose at the polls, and the inadequate verification of their credentials. Of even greater concern is the practice of requiring workers to openly state their union preference in the presence of government officials, representatives of the contending unions, and a representative of a management that has made its union preference obvious. The election proceedings that took place raise questions as to their fairness, equity, and transparency, as required under NAALC Article 5(1), and whether the CAB demonstrated that it was impartial and independent and did not have any substantial interest in the outcome of the matter, in accordance with NAALC Article 5(4).

        In the second case before the CAB, the tribunal acted quickly on the cases alleging wrongful dismissal, ordering the reinstatement of the eleven workers less than two months after their original dismissal by the company, and appears, in this case, to have acted in an impartial manner. The petitions alleging wrongful application of the exclusion clause have not yet been heard, however. That an official named by the CTM is one of three presiding officers in a case to which a CTM affiliate is a party raises questions as to compliance with NAALC article 5(4) on ensuring that labor tribunals be impartial, independent, and not have a substantial interest in a case's outcome.

        The failure to personally notify STIMAHCS of the hearing of September 23 on the admissibility of evidence on the objections that STIMAHCS filed against the representation election raises the question of compliance with NAALC Article 5(1)(c) on the right of the parties to support or defend their positions in labor tribunal proceedings. This actions by the CAB also raises questions as to compliance with NAALC Article 5(1) and 5(1)(d) that labor tribunal proceedings be equitable and transparent, and that such proceedings are in accordance with due process of law; though ultimately the federal court ruled that the failure to notify STIMAHCS was improper and ordered a new hearing.

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Footnotes

13. Political Constitution of the United Mexican States (hereinafter Constitution of Mexico or Mexican Constitution), Article 19.

14. Constitution of Mexico, Article 123, Paragraph XXII.

15. Federal Labor Law, (as amended through December, 1995) (Ormond Beach, Florida, Foreign Tax Law Publishers, Inc., trans.), hereinafter the FLL. This English translation of the FLL is used throughout this report.

16. FLL Article 133(IV).

17. Letter from the National Administrative Office of Mexico (February 3, 1995) (on file with the U.S. NAO).

18. The Federal Labor Law (FLL) is national in scope. Enforcement and implementation is shared between Federal authorities and state governments.

19. U.S. Department of Labor, Bureau of International Labor Affairs, Seminar on Union Registration and Certification Procedures, San Antonio, Texas, November 8, 1995, p. 47. This seminar was the second in a series of three such programs conducted pursuant to an Agreement on Ministerial Consultations on NAO Submission No. 940003.

20. Foreign Labor Trends: Mexico, 1995-1996, p. 14.

21. FLL Article 604 defines the scope of jurisdiction of the CABs.

22. Program for Employment, Training and the Defense of Labor Rights: 1995-2000 (Programa de Empleo, Capacitación y Defensa de los Derechos Laborales: 1995-2000), Secretariat of Labor and Social Welfare, Mexico (1996), p. 79.

23. Letter from the National Administrative Office (NAO) of Mexico dated February 3, 1995, Subject: Questions on Submissions Nos. 940003 and 940004, (on file with the U.S. NAO).

24. The ILO Declaration on Fundamental Principles and Rights at Work, adopted by the 86th Session of the International Labour Conference in June, 1998, provides that all members, even if they have not ratified the Conventions in question, have an obligation to promote the principles concerning fundamental rights which are the subjects of those conventions, including freedom of association and the right to collective bargaining.

25. International Labour Conference, 81st Session, Report III (Part 4B), Freedom of Association and Collective Bargaining (Geneva, International Labour Office, 1994), par. 104.

26. Ibid., par. 231-232.

27. Ibid., par. 102.

28. Ibid., par. 91.

29. Ibid., par. 96.

30. Ibid., par. 234.

31. Ibid., par. 242.

32. Ibid., par. 229.

33. International Labour Office, 157th Report of the Committee on Freedom of Association, (Geneva, 1976) Case No. 827 (Mexico).

34. Ibid.

35. Ibid.

36. International Labour Office, 214th Report of the Committee on Freedom of Association, (Geneva, 1982), Case No. 1069 (India).

37. Ibid.

38. Letter from the Echlin Corporation, March 18, 1998.

39. Mexican NAO letter dated April 23, 1998.

40. NAO Submission No. 9703, affidavit by Celestino García Luna.

41. Ibid., affidavit by Gildardo Hernández López.

42. Ibid., affidavit of Juan Miguel Parada León.

43. NAO Submission No. 9703, affidavit of Rubén Ruíz Rubio.

44. Public Hearing on NAO Submission No. 9703, (March 23, 1998), p. 81. The hearing was conducted in English with simultaneous translation from and to Spanish. The transcript is in English. The statements of Spanish speaking witnesses are translations.

45. Ibid., pp. 81-83.

46. Ibid., pp. 104-105.

47. Ibid., p. 102.

48. Ibid.

49. Ibid., pp. 47-48.

50. Submissions No. 940001, 940002, 940003, 940004, 9501, 9602, and 9702 involved efforts by workers to organize an independent union or affiliate to a different union in opposition to the established union in the workplace. All of these submissions raised the matter of intimidation, harassment, retaliation and dismissal of workers for their union efforts. These allegations were found to be credible and reported on by the U.S. NAO in its reviews of Submissions 940003 and 9702.

51. Workers who are fired after a petition for a representation election is filed are eligible to vote in the election. STIMAHCS filed its petition on May 26, 1997, and all workers dismissed after that date were entitled to vote in the representation election.

52. NAO Submission No. 9703, affidavit of Gilberto García Galicia.

53. Ibid., affidavit of Guillermo Hernández Marquez.

54. Public Hearing on NAO Submission No. 9703, pp. 106-107.

55. Ibid., p. 107.

56. Ibid., p. 48.

57. Ibid., pp. 49-51.

58. Ibid., pp. 86-87.

59. Ibid., p. 52.

60. Ramón Alvarado, René, and Martínez, Fabiola, "In La Paz, Thugs Prevent Workers of ITAPSA from Leaving the CTM" (En La Paz, golpeadores impidieron a trabajadores de Itapsa dejar la CTM), La Jornada, September 10, 1997, p. 58; Aziz Nassif, Alberto, "Union Democracy: The Next Step" (La democracia sindical: siguiente paso), La Jornada, September 23, 1997; Lazaro, Juan , "ITAPSA Workers Intimidated so as Not to Leave the CTM" (Intimidan a trabajadores de Itapsa para que no abandonen a la CTM), El Universal, September 11, 1997.

61. Letter from the Echlin Corporation, March 18, 1998.

62. Mexican NAO letter dated February 3, 1995, in response to the U.S. NAO for use in its review of NAO Submission No. 940003 (on file with the U.S. NAO).

63. Ibid.

64. Open voting before representatives of labor, management and CAB representatives took place in the cases of U.S. NAO Submissions Nos. 940003 and 9702.

65. Submission No. 9702.

66. Mexican NAO letter dated February 3, 1998.

67. Ibid., affidavits of Joaquín Hernández Alanis, Rubén Ruiz Rubio, Celestino García Luna, and Gildardo Hernández López.

68. See de Buen L., Nestor, Derecho del Trabajo, Editora Porrúa, Av. República Argentina, 15, México, 1997, pp. 621-629.

69. Jurisprudencia definido por reiteración de criterios, 5a Epoca, Apéndice al Semanario Judicial de la Federación, 1917-1995, Tomo V, Materia del Trabajo, Tesis No. 58, p. 39.

70. Jurisprudencia definido por reiteración de criterios, 7a Epoca, Apéndice al Semanario Judicial de la Federación, 1917-1995, Tomo V, Materia del Trabajo, Tesis No. 57, p. 38.

71. Amparo Indirecto 2609/87, Sindicato Nacional Independiente de Trabajadores de la Industria Automotriz, Similares, y Conexos, 15 agosto de 1988, Semanario Judicial de la Federación, Octava Epoca, Tomo II, Primera Parte, julio-diciembre de 1988, p. 277.

72. Public Hearing on NAO Submission No. 9703, pp. 81-82.

73. NAO Submissions 940003 and 9702.

74. See Toledo, Enrique de la Garza, "Industrial Democracy, Total Quality and Mexico's Changing Labor Relations," in Regional Integration and Industrial Relations in North America, eds. Cook, Maria Lorena and Katz, Harry C., (Ithaca, New York, ILR Press, New York State School of Industrial and Labor Relations, Cornell University, 1994). p. 26. See also Quintero, Cirila "Reestructuración Sindical en las Maquiladoras Mexicanas, 1970-1990", (Ph.D. diss., University of the Northern Frontier, 1992) pp. 308-312. See also Carillo, Jorge V., "Maquiladoras and Labor Relations," in Unions, Workers, and the State in Mexico, ed. Kevin J. Middlebrook, (Center for U.S.-Mexican Studies, University of California, San Diego 1991), p. 229.

75. NAO Submissions 940003 and 9702.

76. NAO Submission No. 9703, affidavit of Jose Luis Mendoza Hernández.

77. Ibid., affidavits of Jose Luis Mendoza Hernández and Rubén Ruíz Rubio.