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Section
FREEDOM OF ASSOCIATION
- NAALC Obligations and Mexican Labor
Law
- 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."
- 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.
- 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)
- 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)
- Analysis
- NAALC Article 3 Issues
The
allegations of violations of freedom of association protections made by the
submitters fall into four categories. These are:
- 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.
- 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.
- 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.
- 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)
- 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.
- 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.
- 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.
- 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.
- 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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Section
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.
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