Study of Mexican Supreme Court Decisions Concerning the Rights of State Employees to Organize in the States of Jalisco and Oaxaca
Final Report
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Prepared by: Ana Torriente This project was funded under Purchase Order No. B9K62801 from the National Administrative Office, US Department of Labor. Points of view or opinions stated in this document do not necessarily represent the official position or policy of the US Department of Labor. Table of Contents I. Introduction II. Relevant Aspects of the Mexican Legal System
III. The Right of Association in Mexico IV. Collective Bargaining Agreements and the Exclusionary Clause V. Case Law Regarding the Right of Association
VII. Conclusions Pursuant to the National Administrative Office work scope, this report undertakes to summarize and analyze two May 21, 1996 decisions of the Mexican Supreme Court (Suprema Corte de Justicia de la Nación, hereinafter "SCJN"). In order for the reader to understand the rationale of the decisions and their probable impact in the public and private sector, the report will present an overview of the amparo suit and the operation and jurisdiction of the Mexican appellate courts and the SCJN. The report will set forth the sources of Mexican labor law and provide an explanation of the hierarchy of the various laws necessary to an understanding of the SCJN's analysis in the two amparo decisions in question. Further, the report will discuss recent constitutional amendments which may bear upon the status of the two amparo rulings. The instant report compares the May 21, 1996 decisions and provides a review of previous case law on similar issues. Finally, the report contains a section synthesizing the opinions of some of the most respected experts on Mexican labor law with regard to the two decisions and their possible future impact. These opinions are drawn from a variety of professionals in the labor field, from labor tribunal judges, labor law professors and attorneys, some representing labor and others representing management or unions. The information contained in this report on the right of Mexican workers to associate, the right to form and join unions, is submitted in the context of NAO Submission No. 940003, also referred to as the Sony submission. II. Relevant Aspects of the Mexican Legal System In order to fully comprehend the scope and impact of the two amparo decisions analyzed in this report, it is important to understand the sources of Mexican labor law and the law of amparo as well as the principle of hierarchy of laws that is observed within the Mexican legal system. A. Sources of Mexican Labor Law Article 123, Title 6 of the Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos, hereinafter the "Mexican Constitution") establishes the rights and obligations of workers and employers in Mexico.(1) Section A of Constitutional Article 123 governs relations between employers and employees in the private sector.(2) Section B applies to public sector employees and establishes the rights of employees of the federal government and of the Federal District.(3) Section B did not form part of the original Article 123, but was added by decree published in the Diario Oficial de la Federación of October 21, 1960.(4) Section B was subsequently amended by decree published on October 8, 1974. It is important to note that not all public sector employees are governed by Section B of Article 123. State and municipal government employees are generally governed by state law.(5) Decentralized federal agencies were previously governed by Section B.(6) A recent Mexican Supreme Court decision has clarified the scope of Section B, holding that decentralized government agencies fall within the scope of Section A, not Section B. (See discussion at p. 49, infra). Mexico has been a member of the International Labor Organization ("ILO") since September 12, 1931. As an ILO member, Mexico has ratified certain conventions governing labor relations, including ILO Convention 87 regarding freedom of association and the right to organize.(7) The Mexican Federal Labor Law (Ley Federal de Trabajo, hereinafter "LFT") is the regulatory law implementing the constitutional protections established in Section A of Constitutional Article 123. The LFT was originally enacted on August 18, 1931 and was last amended in 1988.(8) The LFT is applicable in all of the states of the Republic of Mexico. Neither the individual states nor the Federal District have enacted separate state legislation governing private sector labor. 4. The Federal Law of Workers in the Service of the State The Federal Law of Workers in the Service of the State (Ley Federal de Trabajadores al Servicio del Estado, hereinafter "LFTSE") is the regulatory law of Section B of Constitutional Article 123.(9) Article 1 of the LFTSE defines the scope of its application.(10) Where the LFTSE is silent, the LFT will be applied.(11) Persons employed by state governments, municipalities, decentralized agencies of the state and agencies or corporations in which a state has a controlling interest are typically regulated by state law. Mexican Constitutional Article 116 (V) provides:
The federal courts establish binding precedent interpreting the state and federal labor laws through amparo challenges to those laws. Decisions on labor matters are issued by local or federal Conciliation and Arbitration Boards ("CABs") or Special Boards composed of three judges: a representative from labor; one from management; and one from the government.(13) The decisions of local or federal CABs are final and not subject to appellate review.(14) They may only be challenged on constitutional grounds through a separate proceeding, the amparo lawsuit (juicio de amparo). (See discussion of amparo at p. 7, infra.) Mexico is a civil law country whose legal system is rooted in the Romano-Germanic tradition. In keeping with this tradition, less emphasis is placed on stare decisis in making conclusions of law. For example, instead of citing prior case law, Mexican court opinions tend to cite the Constitutional provision, law or code provision in question and follow doctrinal interpretations of those provisions. Great weight is placed on the doctrinal opinions voiced by jurists, who are generally law professors or legal researchers. The juicio de amparo is a special lawsuit authorized by the Mexican Constitution. The term amparo refers to shelter. It is a procedural vehicle used to protect individuals from the infringement of their rights under the Constitution. It is also used to protect and maintain the balance of power between the state and federal governments. The amparo suit is not an appeal; it is a separate lawsuit challenging the constitutionality of certain acts of government authorities, including court rulings or the application of unconstitutional laws.(15) 1. The Constitutional Framework of the Amparo Suit The right to bring an amparo suit is established by Mexican Constitutional Articles 103 through 107. In addition to the Constitutional Articles, the regulatory law governing amparo (Ley de Amparo Reglamentaria Artículos 103 y 107 de la Constitución Política de los Estados Mexicanos, hereinafter "Amparo Law") establishes, inter alia, who has standing to bring an amparo suit, the different recourses available to the petitioner, and the various phases of the proceeding. Article 103 of the Mexican Constitution specifies that amparo is a federal remedy and sets forth the circumstances under which individuals or legal entities may bring an amparo suit. Article 103 reads:
The amparo suit is most often used to bring a complaint for a violation of constitutional guarantees. As a general rule, an amparo suit brought under Section I of Article 103 must allege that specific constitutional guarantees have been violated and this violation must derive from the law or act of an authority.(16) These constitutional rights are found in the first 29 articles of the Mexican Constitution, the so-called "individual guarantees." The court's jurisdiction for this suit is established in Articles 103 and 107 of the Mexican Constitution. Petitioners to an amparo suit frequently invoke Constitutional Articles 14 and 16 when alleging that they have suffered a violation of their Constitutional rights. These articles contain protections similar to those found in the Due Process clause of the United States Constitution.(17) Section I of Article 107 requires that the amparo suit be initiated by that person or legal entity (agraviado) who, in fact, is injured by the constitutional violation.(18) The petitioner must name the governmental authorities that committed the allegedly wrongful acts. For example, an amparo suit contesting the legality of a court decision will generally name the ruling judge as a respondent. Any third party that may be affected by the amparo decision must also be named (tercero perjudicado). Constitutional Article 103, Sections II and III, protects the balance of power between the federal and state governments. The victim of such an act is the governmental entity itself and not a private individual, whose interests, although they may be incidentally affected, are protected by the provisions of Section I.(19) 2. The Effect of An Amparo Decision The US common law system is largely predicated on the system of stare decisis. The decision of a higher court in the United States is binding upon lower courts in the same jurisdiction. The same cannot be said of an amparo decision in Mexico. In Mexico, the outcome of an amparo suit affects only the parties to the suit. Constitutional Article 107 establishes the limited scope of amparo protection, specifying that the decision in an amparo suit will protect only the petitioner from application of the law or administrative or judicial act being challenged.(20) This provision is generally referred to as the "Otero Formula," after Mariano Otero, a Mexican jurist who was instrumental in developing this aspect of the amparo law. A court in the United States may declare a particular statute to be unconstitutional. Such a ruling would, unless set aside by a higher court, have universal (erga omnes) effect and bind all lower courts within the ruling court's jurisdiction. In contrast, if a Mexican court finds a law to be unconstitutional, that finding does not necessarily bind the lower courts. Writing on the amparo system, Mexican jurist Juventino V. Castro notes that the remedy created by the Mexican constitution is that of exemption from the application of the challenged law. The only party benefited by the amparo is the petitioner.(21) The Otero Formula in the Amparo Law has been criticized as violating the Supremacy Clause(22) in the Mexican Constitution because the successful petitioner in an amparo suit is exempted from the application of the law being challenged. Therefore, arguably, the principle of equality before the law is lost. Despite some criticism, over time the Otero Formula has become an established hallmark of the Mexican amparo system. Proponents of the individual application of the law under this system argue that it is necessary to maintain stability of the legal order. Therefore, a law will remain in effect even after a Mexican court has declared it to be unconstitutional. The Otero Formula is in keeping with the Civil Law tradition, in which it is the function of the legislature to make or replace laws. While the Mexican judiciary can "make" law, historically, a law-making judiciary could be perceived as invading the legislative sphere. Further, permitting the judiciary to repeal or nullify legislative acts by declaring them unconstitutional would be considered tantamount to elevating the judicial branch above the executive and legislative branches of government. Mexican courts can, nonetheless, establish binding jurisprudence. To establish stare decisis, the Mexican Supreme Court, sitting en banc or in chambers, must issue five decisions on the same point without contradiction.(23) Therefore, if there are less than five opinions declaring an act or a law unconstitutional, these opinions will not be considered legally binding, and the lower courts may or may not follow them. Once there are five consecutive decisions on the same point, the Court is deemed to have created binding jurisprudence (jurisprudencia obligatoria). The five decisions are then cited together for the proposition they establish.(24) Jurisprudence may, however, be created by a single decision of the Mexican Supreme Court where the Court's decision resolves conflicting opinions of the Collegiate Circuit Tribunals.(25) (See discussion at Section C, infra, at pp. 16-19.) The Collegiate Circuit Tribunals, which are roughly analogous to US Circuit Courts of Appeal, may also create binding jurisprudence within their jurisdiction. To establish binding precedent, the Collegiate Circuit Tribunals must issue five decisions on the same point without contradiction and the decisions must be approved by unanimous vote of the tribunal's three-judge panel.(26) A decision which does not constitute binding jurisprudence is referred to as an ejecutoria, or a tesis de jurisprudencia. While the decisions of higher courts may be relied upon by lower courts as guidelines, there is no tradition of stare decisis as that doctrine exists in the United States. A lower court is not required to follow a ruling (or even four identical rulings) of a higher court. A Mexican Supreme Court or Collegiate Circuit Tribunal decision may be persuasive to a federal district court, but it is not obligated to follow that decision unless it constitutes binding jurisprudence pursuant to Articles 192 and 193 of the Amparo Law. In keeping with Mexico's Civil Law tradition, not only is the creation of binding precedent limited to specific circumstances, but less emphasis is placed on precedent in comparison with the US common law tradition. For example, a typical Mexican Supreme Court case may use three or four cites to jurisprudence in a fifty or sixty page court opinion, whereas a typical US Supreme Court opinion of the same length may cite dozens of cases in support of the Court's conclusions. Jurisprudence may be interrupted or modified. Jurisprudence may be interrupted by the Supreme Court whenever the Court issues a judgment which contradicts previously established precedent. The contravening decision must be supported by a vote of fourteen justices if the jurisprudence was created by the Court sitting en banc, or by four justices if the precedent was created by the Court sitting in chambers.(27) The Collegiate Circuit Tribunal may overrule established precedent by a unanimous vote of the three-judge panel.(28) (See discussion at Section C, infra, at pp. 16-19.) 3. The Procedural Route of the Amparo Suit An amparo lawsuit may challenge a procedural ruling, an interlocutory decision or a final decision.(29) If the decision is a procedural ruling or an interlocutory decision, it will be challenged through an "indirect" amparo lawsuit. This type of suit will typically be filed in the federal district court (juzgado de distrito). The petitioner will challenge the ruling/decision on constitutional grounds, requesting amparo, or shelter, from the application of the ruling/decision. If the district judge grants the amparo, the petitioner will be exempt from application of the ruling/decision. If, however, the petition for amparo is denied, the petitioner may file a request for review of the amparo decision (recurso de revisión). The request for review will be heard by the Collegiate Circuit Tribunal, unless the amparo challenges the constitutionality of a law or regulation. If so, the request for review will be heard by the Mexican Supreme Court. If the petitioner is dissatisifed with a final decision of the CAB, he/she may challenge the decision on constitutional grounds through a direct amparo. The direct amparo lawsuit is filed with the CAB, requesting that the CAB temporarily suspend the application of the decision and that the file be sent by the CAB to the Collegiate Circuit Tribunal. The Collegiate Circuit Tribunal will hear the direct amparo lawsuit, unless it challenges the constitutionality of a law or regulation, in which case the Collegiate Circuit Tribunal will decline to hear the matter and will send the file to the Mexican Supreme Court. Unless the amparo involves the constitutionality of a law or regulation, the decision of the Collegiate Circuit Tribunal is final and non-appealable.(30) The Amparo Law contains special provisions protecting workers in amparo suits involving labor matters. Amparo suits differ in the labor area in three aspects. First, Article 76 bis(31) of the Amparo Law provides that deficiencies in the amparo complaint should be corrected by the court for the benefit of the worker in labor matters.(32) This procedure is termed suplencia de la queja. It does not apply where the employer is the complainant. Another protective feature is found in the provisions of the Amparo Law pertaining to dismissal of the suit (sobreseimiento) for failure to exercise due diligence. An amparo suit may be dismissed for failure to exercise due diligence, but only if the amparo suit or request for amparo review was filed by the employer.(33) Finally, the amparo law provides that the employer must post a bond to obtain the suspension of the acts complained of (suspensión). Where the worker may undergo extreme hardship, the President of the CAB has the power to give the worker the amount of the bond during the pendency of the amparo proceeding.(34) All of these special protections reflect the paternalistic approach historically taken toward labor after the drafting of the 1917 Constitution. 4. The Effect of Amparo Suits 337/94 and 338/95 The recent judgments rendered by the SCJN, en banc, in amparo suits Nos. 337/94 (the Guadalajara case) and 338/95 (the Oaxaca case), follow the procedure outlined above for an indirect amparo proceeding.(35) The petitioners in both cases are unions whose applications for union registration were denied. The union in the Guadalajara case was an association of academic staff of the University of Guadalajara (Sindicato de Personal Académico de la Universidad de Guadalajara), whereas the union in the Oaxaca case was a union of state employees (Sindicato de Solidaridad de Empleados al Servicio del Estado de Oaxaca y Organismos Decentralizados). Both amparo suits involved a challenge to the constitutionality of state laws prohibiting public sector employees from forming more than one union per workplace. The petitioners in both cases alleged violations of the right of association protected by the Mexican Constitution. Both amparo suits were initiated at the federal district court level, challenging procedural rulings of the administrative labor tribunal denying their applications for union registration. The cases came before the SCJN following the filing of requests for review of the district court amparo decisions. As questions of constitutionality were involved, the requests for review in both cases were ultimately heard by the SCJN, instead of by Collegiate Circuit Tribunals. The impact of the above-referenced amparo decisions is questionable. The two decisions do not constitute binding jurisprudence pursuant to the Amparo Law. Lower courts are, therefore, not bound to follow those opinions. The decisions arguably further fundamental rights of association for public sector employees. Lower courts may find the arguments advanced by the SCJN to be persuasive, but the decisions do not constitute binding precedent on this issue. The decisions may, however, trigger the filing of additional amparo suits on this issue by similarly-situated individuals or entities. If the SCJN thereafter issues an additional three decisions affirming the existing rulings on this point, then it would create jurisprudence which the lower courts would be required to follow. C. Relevant Aspects of Recent Judicial Reforms Upon taking office, Mexican President Ernesto Zedillo initiated constitutional amendments which resulted in sweeping reforms to the federal judiciary.(36) These reforms included a wholesale restructuring of the Mexican Supreme Court. Prior to the reforms, the Mexican Supreme Court was composed of twenty-one justices, who could act en banc or in chambers. Up to five supernumerary members of the Court could be named.(37) The reforms had the effect of terminating the appointments of all justices on the Supreme Court at the time the changes became effective.(38) Constitutional Article 94 was amended to limit the number of justices on the Court to eleven, without supernumeraries.(39) The Court may sit en banc, or divided into chambers. The Chief Justice does not form part of a chamber.(40) The Supreme Court was historically divided into four chambers: administrative, labor, civil, and criminal. Following the reforms reducing the size of the court from twenty-one justices to eleven, the number of chambers was reduced from four to two.(41) Each chamber is composed of five justices.(42) The first chamber now hears civil and criminal matters, while the second chamber hears administrative and labor cases.(43) Theoretically, the 1994 reforms could prevent the Court from creating binding jurisprudence, because the Amparo Law has not yet been amended to accommodate the reforms. The Amparo Law provides that the Court may create binding jurisprudence where it issues five consecutive decisions on an issue without contradiction. Such decisions must be approved by at least fourteen justices, if the decision is issued en banc, or by four justices if the decision is issued by the Court acting in chambers.(44) Clearly, if there are now only eleven justices on the Court, even a unanimous Court could not create binding jurisprudence. The same inconsistency exists with regard to overruling established jurisprudence. Article 194 of the Amparo Law provides that the vote of fourteen justices is necessary to overrule established precedent if the decision was issued by the Court in plenary session, by a vote of four if the decision was issued by the Court acting in chambers.(45) The new Organic Law of the Federal Judiciary (Ley Orgánica del Poder Judicial de la Federación) provides that the Amparo Law governs the creation of binding jurisprudence.(46) To date, however, the Amparo Law has not been amended to eliminate these discrepancies. The 1994 reforms are viewed by some Mexican lawyers as taking a step toward giving the Mexican Supreme Court power to issue decisions having an erga omnes effect. Constitutional Article 105 gives the Supreme Court exclusive jurisdiction over constitutional disputes, with the exception of electoral matters, which arise between the governmental entities specified in Article 105(I).(47) Section II of Article 105 authorizes the Supreme Court to declare a new law unconstitutional.(48) The challenge to the new law must be made within thirty days of its publication. Further, the action challenging the constitutionality of the new law may be brought by the following:
This amendment gives the Supreme Court the power to declare the general invalidity of a new law in a single decision, when the law is challenged by the groups or individuals specified above. The Mexican Supreme Court has never before enjoyed such broad power to issue a general decision declaring the invalidity of a law. In all other cases, individuals or groups challenging a law must go through the amparo procedure and the Court's decision will affect only the parties to that suit. Five amparo decisions will be needed to establish binding jurisprudence regarding laws challenged pursuant to the procedures established by the Amparo Law. D. The Classification and Hierarchy of Mexican Laws The rationale of the amparo decisions discussed in this report, infra, turned, in part, on the application of Constitutional Article 133, the Supremacy Clause in the Mexican Constitution. Pursuant to the Supremacy Clause, Mexican laws are categorized according to type and are given a certain hierarchy depending upon their classification. The various types of laws discussed in the amparo decisions in question are listed below in descending order of importance:
As in the United States, the Mexican Constitution is the supreme law of the land. Mexican constitutional scholar Alfonso Noriega has stated, "The Constitution is the supreme law of the nation, the super law, which reigns supreme over all other laws and juridical structures. This hierarchical supremacy in the domestic law and the necessity that all other laws follow it is what is termed the principle of constitutional supremacy." (54) Article 133 of the Mexican Constitution establishes the hierarchy of the different types of laws:
While the Constitution gives the basis for establishing the hierarchy of laws, there is some controversy regarding the interpretation of Constitutional Article 133. Andr,s Serra Rojas places the various Mexican laws in the following hierarchy: a) the Constitution; b) ordinary laws issued by the federal legislative branch; c) ordinary laws issued by the federal executive branch in those cases authorized by the Constitution; d) Treaties and conventions that the State celebrates; e) regulations issued by the executive branch; f) regulations, statutes, operational rules, technical standards of service for decentralized administrative agencies; g) circulars and instructions; and h) analogy.(56) In contrast, Eduardo García Maynez arranges the laws in the following order of importance: a) the Constitution; b) federal laws and international treaties; c) ordinary laws; d) regulatory laws; and e) individual norms.(57) Maynez represents the prevailing view in Mexico. The SCJN has ruled that an organic law is superior in hierarchy to a federal ordinary law. Thus, if an ordinary federal law were to conflict with an organic law such as the Amparo Law, the latter would prevail. The Court held that "[T]he legal order rests in the application of the laws, and those laws, too, follow a hierarchical order, which has at its top the Constitution, the laws which emanate therefrom and international treaties, given that Constitutional Article 133 clearly establishes their supremacy over all the Union, and all laws of the country must be subordinate to them, regardless of their federal or state nature, if a conflict arises upon their application."(58) The Supremacy Clause contained in Constitutional Article 133 establishes that federal laws emanating from the Constitution and international treaties are the supreme law of the land provided that they do not contravene the principles set forth in the Constitution. Accordingly, the federal labor laws (the LFT and the LFTSE) may not contain restrictions contravening the freedom of association guarantees established in Constitutional Article 123. Similarly, the freedom of association principles of ILO Convention 87 adopted by Mexico could not contravene the guarantees found in Article 123.(59) III. The Right of Association in Mexico Freedom of association was first recognized as a basic fundamental human right in Mexico in the Mexican Constitution of 1857. Article Nine of that Constitution provided that the right to associate for any lawful purpose could not be restricted.(60) Nevertheless, in the labor context, workers were prohibited from attempting to form unions. Organizing was an offense that, under the 1857 Constitution, could be punished by imprisonment. The text of Article Nine of the 1857 Constitution remained unchanged in the Mexican Constitution of 1917.(61) Constitutional protection of the right to organize was extended to workers in Article 123 of the 1917 Mexican Constitution.(62) Private sector workers(63) are protected by Article 123(A)(XVI), which reads:
The right to form a coalition is the most basic form of the right of association. It is a temporary grouping of workers or employers and its existence terminates when the coalition has achieved the purpose for which it was formed.(67) The LFT recognizes and defines the coalition, but does not regulate it as it does regulate unions, federations and confederations.(68) Coalitions and unions may be formed without prior authorization. A number of different coalitions and unions may co-exist in any one workplace. Such freedom of association is consistent with the principles established in Mexican Constitutional Article 123 as well as in ILO Convention 87. Coalitions have the right to call a strike, but the LFT also recognizes the union's right to do so, in the sense that they are permanent coalitions.(69) Coalitions may also bring amparo suits in their own name, although they do not expressly have legal personality.(70) Coalitions do not, however, have the power to negotiate or enter into collective bargaining agreements in the absence of an established union.(71) The Mexican labor law provides for the formation of trade, company, industry, industry-wide and professional unions.(72) Unions may also form federations or confederations of unions. These must be registered with the Department of Labor and Social Welfare (Secretaría del Trabajo y Previsión Social) and are regulated by the LFT.(73) With regard to the right to unionize, Article 357 reads:
The labor union has its conceptual underpinnings in Constitutional Articles 9 and 123.(76) The LFT defines the union as an "association of workers or employers, constituted for the study, improvement and defense of their respective interests."(77) Unions are considered historically as the instrument or the vehicle for the struggle of the working class to attain better working and living conditions.(78) Unions are prohibited from intervening in areas outside of the labor arena. Specifically, LFT Article 378 prohibits unions from interfering in religious matters as well as from acting as merchants in for-profit ventures.(79) Nonetheless, Mexican unions in practice participate actively in partisan politics in Mexico, although political matters are not included in their by-laws as one of the purposes of unions.(80) Further, some unions, such as the Confederación de Trabajadores Mexicanos (CTM), do in fact participate in commercial transactions.(81) A minimum of twenty workers in active service is required to form a workers' union.(82) The union must establish governing statutes, elect a governing body and register with the appropriate federal or state authority.(83) Mexican labor unions must apply for and obtain registration from the state or federal government in order to acquire legal capacity (capacidad jurídica) to acquire personal property or real property, or to exercise their rights before the authorities through actions such as filing a lawsuit, representing employees or bargain collectively.(84) With regard to registration, LFT Article 365 provides:
Certain types of strategic industries are deemed to be under federal authority.(86) If the union is under federal jurisdiction, it must apply to and be approved for registration by the Department of Labor and Social Welfare (Departamiento de Trabajo y Previsión Social). If the union is under state jurisdiction, it must apply to the local Labor Conciliation and Arbitration Board.(87) Once the labor union is duly formed and registered, it acquires juridical capacity and may enter into collective bargaining agreements and industry-wide contracts (contratos-ley).(88) In fact, once the union is registered, the employer must enter into a collective bargaining agreement with the union upon request regardless of whether the members constitute a majority of the employer's work force.(89) If the employer refuses to sign the agreement, the workers may exercise their right to strike.(90) In contrast to the National Labor Relations Act (NLRA), which requires only that the employer negotiate in "good faith" with a union in an attempt to reach consensus and conclude a collective bargaining agreement, the Mexican labor law requires the employer to conclude such an agreement.(91) Where the employer refuses, the dispute may be taken to the appropriate labor tribunal, which may then set terms and conditions for the parties to resolve their differences.(92) A duly constituted union may acquire assets and represent its members in all proceedings before the appropriate authorities, including entering into collective bargaining agreements.(93) A union must enjoy majority support, however, before it may execute a contract as the exclusive representative for all the workers in a workplace.(94) A union with majority status may also negotiate a collective bargaining agreement that requires all incoming employees in the workplace to be or become members of the majority union.(95) The exclusivity clause may not, however, affect workers employed in the workplace prior to the effective date of the collective bargaining agreement.(96) Private sector employees presumably enjoy the right of free association and the right to organize and join their union of preference; however, some Mexican jurists suggest that the use of exclusionary clauses (cláusula de exclusión) in collective bargaining agreements unlawfully restrict employees' rights of association.(97) By expelling workers from union membership and terminating their employment when they oppose the union with the right to collectively bargain, these authors argue that the right of free association is effectively chilled.(98) In addition, some Mexican labor lawyers indicate that governmental authorities routinely deny registration to private sector unions when there is already a registered union in the workplace.(99) LFT Article 366 provides that registration of a labor union may be denied only where: (1) Its objectives are not those contemplated under LFT Article 356;(100) (2) It is not composed of the minimum number of members established in LFT Article 364;(101) and (3) It does not provide the documents required [in LFT Article 365]. Pursuant to LFT Article 366, if the requirements for registration are met, the government authorities have no discretion to deny registration.(102) Nonetheless, it appears that, in practice, the registration process may be colored by partisan politics, with the Mexican government favoring the registry of new unions affiliated with the "official," government-backed unions such as the CTM, while discouraging the registration of independent unions.(103) A union denied registration is not recognized as a legal entity and lacks legal capacity to represent its members or enter into collective bargaining agreements. Mexican Constitutional Article 123(B) regulates public sector employment.(104) Subsection (X) provides, in relevant part:
Despite the above-cited constitutional provision, public sector workers have historically been restricted to one union per workplace. Article 68 of the LFTSE (Ley Federal de Trabajadores al Servicio del Estado Reglamentaria del Apartado B Constitucional), the regulatory law implementing Constitutional Article 123(B), provides:
Those federal public sector workers subject to Constitutional Article 123(B) are regulated by the LFTSE. Since Article 123(B) was added to the Mexican Constitution in 1960, however, the scope of Section B (Apartado B) has been restricted. Decentralized government agencies are now deemed to fall under the scope of Section A. States are empowered to enact their own laws governing their employees. Such laws must not conflict with the protections guaranteed by Constitutional Article 123. This safeguard is set forth in Constitutional Article 116(V), which reads:
All state laws governing public sector employment were enacted after the March 17, 1978 amendments to Constitutional Article 116 (V).(106) They are as a rule modeled after the LFTSE and restrict public sector employees to one union per workplace. An example of this restriction is found in the Law of Public Servants of the State of Jalisco and its Municipalities (Ley para los Servidores Públicos del Estado de Jalisco y sus Municipios, hereinafter "LSPSEJ") . The LSPSEJ provides:
In contrast to government agencies, universities are generally autonomous institutions by operation of law.(109) University academic staff are governed by LFT Articles 353(J) through (U).(110) With regard to Amparo No. 337/94, however, Articles 22(VI), 23(XII) and 26 of the Organic Law of the Executive Branch of the State of Jalisco (Ley Orgánica del Poder Ejecutivo del Estado) expressly provided that the University of Guadalajara was an agency of the Executive branch of the state.(111) The academic staff of the University were therefore regulated by the LSPSEJ. IV. Collective Bargaining Agreements and the Exclusionary Clause Mexican labor law permits the use of the so-called exclusionary clause (cláusula de exclusión) in collective contracts. These clauses close the company doors to those workers who do not belong to the union, or operate to terminate those workers who leave or are expelled from the union. (112) There are two types of exclusionary clauses: Clauses for Entry into the Workplace (Cláusulas de Exclusión de Ingreso) and Termination Clauses (Cláusula de Exclusión por Separación).(113) The former is essentially a closed shop agreement. It is generally a clause in the collective bargaining agreement, whereby the employer undertakes not to hire workers unless they belong to the union.(114) LFT Article 395 provides:
LFT Article 395 further states, however, that workers whose employment pre-dates the execution of the collective contract may not be compelled to join the contracting union. This clause, and any others establishing privileges [for union membership], may not be applied to the detriment of those workers who are not members of the contracting union and who were employed in the company or establishment prior to the date of the negotiation and execution of the collective contract and the inclusion of the exclusionary clause in the contract.(116) The termination clause (cláusula de exclusión por separación) is a collective contract clause which authorizes the union to require the employer to terminate from employment those workers who leave or are expelled from the contracting union.(117) LFT Article 395 further provides:
Exclusionary clauses have come under fire in Mexico. Some jurists consider that they unconstitutionally restrict the basic rights of freedom of association and the right of workers to organize.(119) It has also been argued that these clauses conflict with the affirmative right to join or refrain from joining a union and, in particular, with the right to refrain from forming or to resign from a labor union.(120) V. Case Law Regarding the Right of Association A. Summary of Amparo No. 337/94 Facts and Procedural History: The petitioner in this amparo case was the Union of Academic Personnel of the University of Guadalajara (hereinafter, "the Union"). The Union was composed of academic staff of the University of Guadalajara, who contended that there was no union at the University to represent their rights as state employees. The academic staff formed the Union and, on May 31, 1993, timely filed a petition with the State Arbitration and Employee Classification Board for the recognition and subsequent registration of the new union. The Board's records indicated the existence of another union at the University of Guadalajara, the Sindicato Unico de Trabajadores de la Universidad de Guadalajara, which was registered as of January 30, 1980. In a June 2, 1993 ruling, the State Arbitration and Employee Classification Board denied the Union's petition to register as an official workers' union. The Board cited Article 76 of the Law on Public Servants of the State of Jalisco and its Municipalities (LSPSEJ), which provides that there can be no more than one union in each governmental body, municipal agency or decentralized agency or in firms or associations of state or municipal majority participation. On June 28, 1993, the Union, through its representatives, filed an amparo suit in federal district court. The suit was filed against the following state governmental authorities: the Congress of the State of Jalisco, the Governor of Jalisco, the Jalisco Secretary General and the State Arbitration and Employee Classification Board. The amparo suit was filed with the First District Judge on Administrative Matters of the State of Jalisco. In a ruling dated October 20, 1993, that court admitted the Union's suit, but dismissed the Governor and Secretary General. The court also dismissed those union members who had filed on their own behalf, ruling that they lacked standing to bring an amparo suit. The court held that the Union itself, through its representatives, did have standing to protest the denial of union registration. In its ruling issued on October 20, 1993, the district court granted amparo to the Union. The respondents dissented from the court's decision and filed a request for review of the amparo decision. The judge accordingly sent the amparo file and the written bases for appeal to the SCJN, who accepted the request for review. The Supreme Court heard this constitutional matter en banc, with ten members of the court participating. Issues: Whether the acts of the government authorities were unconstitutional and violated the petitioners' constitutional rights to freedom of association and their right to organize, rights guaranteed by Articles 9, 14, 16 and 123(B)(X) of the Political Constitution of the United Mexican States. Analysis: The Supreme Court upheld the dismissal by the District Judge of the Governor of the State of Jalisco and the Secretary General of Government, as well as the dismissal of the individual union members from the suit for lack of standing. The Court found that, in accordance with Articles 22(VI), 23(XII) and 26 of the Organizational Law of the Executive Power of the State of Jalisco, the University of Guadalajara is an agency of the executive branch of the state government. The Court reasoned that, therefore, Article 116(V) of the Mexican Constitution applied to the University. That provision contemplates that labor relations between states and their employees are governed by state laws issued in accordance with Article 123 of the Constitution and its regulatory provisions. Constitutional Article 123(A)(XVI) and (B)(X) establishes the right of workers to form labor unions and associate freely to protect their common interests. Article 123 does not reflect any restriction or limitation on the number of labor unions that may be formed in the workplace of the governmental employee, nor does the legislative history of Article 123 suggest that the framers of the Constitution intended any such restriction or limitation. Article 123(II) provides that any labor laws issued must not violate the basic protections of Subsections A and B. Article 133 of the Mexican Constitution provides that the Constitution is the supreme law of the land. Accordingly, protections granted by the Constitution take precedence over any subordinate laws such as state statutes, that might contradict or violate those constitutional protections. The SCJN concluded that Article 76 of the LSPSEJ was unconstitutional in that, by limiting the number of unions that may be formed in a government workplace, it interfered with the petitioner's constitutional rights of association and organization. The Court held that Article 123(A)(XVI) and (B)(X) establish the social guarantee of freedom of association as a right belonging to workers. (A.R. 337/94 at 42). The Court cited comments made with respect to the adoption of Subsection B by the Mexican Congress in 1959, noting that the amendment left undisturbed the protections already guaranteed to workers in the private sector under Subsection A and extended these basic rights to government employees. Freedom of association is recognized as one of the primary guarantees, which implies the freedom of workers to organize in labor unions and federations. (A.R. 337/94 at 42-43). The Court further cites comments to the amendments to Article 123 passed in December 1978 and June 1993 with respect to the freedom of association. The comments to the 1978 amendments stress that the Mexican government must respect the freedom of workers to organize in defense of their interests and that theses organizations should function with true internal democracy without government intervention. The legislative comments to the 1993 amendments note that, in 1950, Mexico became a signatory to Convention 87 of the International Labor Organization on freedom of association, in which member states are bound to respect the decision of its workers to form organizations that they deem pertinent. The legislative comments go on to state that freedom of association and effective participation by the workers in the collective bargaining agreement process, are fundamental rights. The Court concluded that the spirit of Article 123 (A)(XVI) and (B)(X) was to uphold the freedom of association in a universal sense, recognizing the right of each worker individually top organize and recognizing the collective right to organize once the union acquires its own juridical existence and personality. The court observes that the laws issued by State legislatures to govern labor relations must respect the principles of freedom of association in accordance with Article 116(V) of the Constitution. The Court held that the worker's right to organize has three basic aspects: (1) The worker has the affirmative right to join a labor union that has already been formed or to agree to the establishment of a new union; (2) the worker has what the Court describes as a "negative" right, the right to refrain from joining a specific union or to refrain from entering into any union affiliation; and (3) the worker has the right to leave or to refuse to join a union. Accordingly, the Court found that Article 76 of the Law on Public Servants of the State of Jalisco violates the provisions of Mexican Constitutional Article 123(B)(X) in that it limits government workers to one union. Article 76 provides that there can be no more than one union in each governmental power, government agency, municipal agency or decentralized agency and firms and associations with majority state or municipal participation. The Court rejected the appellants' argument that the Congress of the State of Jalisco had the power to determine whether or not one or more labor unions could be established in the State of Jalisco. The Court also rejected the appellants' contention that Article 76 did not violate the Mexican Constitution because it was enacted pursuant to Constitutional Article 116(V). Pursuant to the Supremacy Clause found in Article 133 of the Mexican Constitution, constitutional provisions pre-empt any other secondary laws, including any regulatory laws implementing Constitutional provisions. Accordingly, the rights of free association guaranteed by Mexican Constitutional Article 123 would prevail and cannot be restricted by federal or state secondary regulations or statutes. Facts and Procedural History: A group of state employees in the State of Oaxaca formed a labor union, the Solidarity Union of Employees of the State of Oaxaca and Decentralized Agencies (Sindicato de Solidaridad de los Trabajadores de los Poderes del Estado de Oaxaca y Organismos Decentralizados). The Arbitration Board for Oaxaca State Employees (Junta de Arbitraje para los empleados al Servicio de los Poderes de Oaxaca) denied the group's application for union registration on April 18, 1994. Subsequently, the petitioners filed an amparo suit with the federal district court on April 20, 1994. On July 15, 1994, the district court judge issued a ruling denying amparo to the petitioners and upholding the Board's decision. Subsequently, on August 22, 1994, the union, through its representatives, filed a request for review (recurso de revisión) of the district court's decision with the Collegiate Circuit Court. The circuit court issued a ruling on January 13, 1995 declaring that it lacked jurisdiction to hear the request for review, and sent the file to the SCJN. The Court Clerk (Subsecretario de Acuerdos) sent the amparo file to the Second Chamber of the SCJN on March 2, 1995. On August 11, 1995, the Second Chamber issued a decision holding that it lacked jurisdiction to rule upon the request for review and that the matter should be heard by the SCJN en banc. On October 5, 1995, the SCJN agreed to hear the request for amparo review en banc. Finally, the SCJN issued its decision in this matter on May 21, 1996. Issues: Whether the decisions of the CAB and federal district court judge, in denying union registration to the petitioners, violated their constitutional rights under Articles 9, 14 and 16 of the Mexican Constitution in light of constitutional Articles 123(A)(XVI) and 133. Analysis: The SCJN concluded that Constitutional Article 123 guarantees the right of Mexican workers to form or refrain from forming unions. Article 123 also protects the right of workers to join or refrain from joining unions or to terminate their membership in any union. In its April 18, 1994 ruling denying union registration to the petitioners, the Board cited Article 152 of the Oaxaca State Constitution. The Board also held that Oaxaca had adopted a one union per workplace rule through the Civil Service Law for State Employees (Ley del Servicio Civil para los Empleados del Gobierno). The cited law is applicable to employees of the executive, judicial and legislative branches of state government as well as to employees of quasi-state agencies (agencias decentralizadas). The Board found that Articles 41 through 50 of the Civil Service Law repeatedly make reference to a single union system as opposed to a pluralistic system. The petitioners argued that the Civil Service Law did not contain any express one-union-per-workplace restriction. They further argued that Article 7 of the Civil Service Law provided that, where the law was silent, those issues would be resolved by following the principles set forth in the Federal Labor Law. As the LFT contains no restrictions on the number of unions that may exist in any workplace, the petitioners argued that the CAB's application of the Civil Service Law was erroneous. Petitioners also argued that the Board's imposition of a one union restriction violated Mexico's obligations under ILO Convention 87 regarding freedom of association and the right to organize, adopted by Mexico on January 26, 1950. In accordance with the Mexican Supremacy Clause, Article 133, the Convention provisions became the supreme law of the land. Petitioners argued that the Board should have followed the provisions of the Convention and accorded them union registration. They claim that, instead, the Board unlawfully converted union registration into an obstacle to union formation and that denying the union registration denies it legal capacity and thereby leaves it incapable of asserting and exercising its legal rights. Petitioners noted that Article 1 of ILO Convention 87 imposes a duty upon all ILO members ratifying the Convention to implement the Convention provisions. Article 2 of ILO Convention 87 provides that workers, without distinction and without prior authorization, have the right to form those organizations that they deem appropriate. The Convention excepts only members of the police force and the armed forces from its coverage. The ILO Commission of Experts on the Application of Treaties and Recommendations, in its 69th Session, observed that Mexico's labor laws conflicted with the provisions of ILO Convention 87. The Commission specifically noted that the one-union-per-workplace restrictions found in Articles 68, 71, 72 and 73 of the LFTSE conflicted with the Convention, as did Article 69 of the LFTSE, which prohibits workers from leaving a union unless expelled. Further, LFTSE Article 84 provides that there can be only one federation of unions. The Commission noted the response of the Mexican government, which stated that the LFTSE reserves the designation of the term "union" to the organization or association that represents the majority of workers in a given agency and that, while the majority organization enjoys certain exclusive rights under the LFTSE, other minority organizations may exist and take actions in defense of the interests of their members. The Commission nevertheless found that such minority organizations are not recognized as having legal capacity and are therefore deprived of the means to effectively defend the interests of their members. The Commission expressed its hope that the Mexican government would modify the cited LFTSE articles to conform to the Convention. The Second Chamber of the SCJN declined to hear the matter. While Article 21 (II) of the Organic Law of the Federal Judiciary (Ley Orgánica del Poder Judicial de la Federación) contemplates that the Second Chamber has exclusive jurisdiction to hear controversies arising out of Constitutional Article 133, the Second Chamber reasoned that the instant case would require the interpretation of a series of topics which the SCJN should hear and rule upon in plenary session. Constitutional Article 107(VIII) provides that the SCJN has primary jurisdiction to hear requests for review of amparo decisions made by district court judges. The SCJN accepted jurisdiction over the request for review, noting that, given the special characteristics of the matter and its fundamental importance and interest, the court was de oficio exercising its discretion to hear a matter where the primary issue was the freedom to unionize. The SCJN observed that, independent of the constitutional question indicated (involving the interpretation of Article 133), the request for review involved labor issues in which the act in question was related to the right to organize protected by Article 123 of the Constitution and ILO Convention 87. The district court judge found that the Board had correctly cited Oaxaca Constitutional Article 152, which reads:
The district judge also found that the Civil Service Law contemplates a one union per workplace restriction. The judge therefore declined to apply the LFT, having found that the Civil Service Law expressly governed the organization of state employees. Finally, the judge held that, while Constitutional Article 133 establishes that the Constitution and duly ratified treaties are the supreme law of the land, the Board judge was not obligated to follow ILO Convention 87, since the Civil Service Law has not been declared unconstitutional and therefore could not be deemed to conflict with the supreme law. The SCJN applied Article 76 bis of the Amparo Law, which permits the reviewing court to supplement and correct any deficiencies in the petitioner's claim of error.(122) The Court observed that Articles 41 through 50 of the Civil Service Law do not expressly prohibit the existence of more than one union and supplements the petitioners' complaint to emphasize that the gravamen of the request for review is the illegality of the ruling by the responsible authority in denying the petitioner union registration, erroneously interpreting Articles 41 through 50 of the Civil Service Law as imposing a one-union-per-workplace restriction instead of reaching an interpretation consistent with Constitutional Article 123 and ILO Convention 87. The SCJN then cites its analysis in the Guadalajara decision (Amparo No. 337/94) establishing that Constitutional Article 123(A) and (B) set forth the basic protections available to workers, including that of freedom of association and the right to organize. The portion of the Guadalajara decision cited by the Court acknowledges that freedom of association is one of the fundamental rights first recognized in the worldwide labor rights movement and which, by definition, implies the right of workers to form unions and federations. The cited language goes on to discuss ILO Convention 87, noting the legislative discussions that preceded amendments to Constitutional Article 123 which acknowledges Mexico's obligation under the Convention to respect workers' right to organize. The Court reiterates the text of ILO Convention 87 in its entirety. The Court indicates that its reasoning in the Guadalajara decision is fully applicable to the facts of the Oaxaca case. The Court concludes that Article 123 of the Constitution protects the right to organize and that any act that impairs this liberty conflicts with the Constitution. The reasoning of the Guadalajara decision, furthermore, indicates that the court's interpretation of Article 123 is reiterated by ILO Convention 87. The Court cites the full text of Articles 41 through 50 of the Civil Service Law. It notes that the law does not contain any express prohibition against forming more than one union per workplace. Thus, the Court concludes that the district court erred in finding that such a prohibition existed and that, furthermore, the court's interpretation should have followed Article 123(B)(X) in accordance with Article 116(V) and ILO Convention 87, which provisions would have led to the conclusion that no such prohibition existed. The Court therefore found the petitioners' complaints justified and grants them amparo, ordering the Board to set aside its original decision and issue another decision granting the petitioner union registration upon finding that the Union has met all legal requirements for union registration. C. Comparison of the Guadalajara and Oaxaca Decisions Both amparo suits arose out of the wrongful denial of union registration. Both suits involved challenges to state laws imposing a one-union-per-workplace restriction on public sector workers. These state laws were both presumably modeled after the federal law implementing Article 123(B) constitutional provisions governing public sector workers. That law, the LFTSE, contains an express restriction precluding government employees subject to its provisions from forming more than one union in a workplace.(123) The Guadalajara case challenged Article 76 of the Law of Public Servants of the State of Jalisco and its Municipalities (Ley para los Servidores Públicos del Estado de Jalisco y sus Municipios), which expressly prohibited public sector workers from forming more than one union per workplace. The Oaxaca case challenged a state civil service law which appeared to be loosely modeled after the LFTSE, but which contained no express restrictions against the formation of more than one union per workplace. The petitioners in both the Guadalajara and Oaxaca cases alleged that the denial of union registration violated the fundamental right of freedom of association guaranteed by Constitutional Article 9. The petitioners in both cases also alleged violations of Constitutional Articles 14 and 16. These articles are typically cited in amparo suits. Finally, the petitioners in both cases cited different sections of Constitutional Article 123 in support of their claims that denial of union registration violated their right to organize. The petitioners in the Guadalajara case relied on Article 123(B)(X) in support of their claim. Section B of Article 123 applies to government employees.(124) Subsection X provides that "workers shall have the right to associate together for the protection of their common interests." Citing constitutional Article 116(V), the petitioners argued that state laws governing relations between states and their workers must not contravene the protections afforded in Constitutional Article 123, which establishes a constellation of workers' rights, including the right to organize.(125) Although the petitioners in the Oaxaca case were also state employees, their amparo suit cited Constitutional Article 123(A)(XVI). Section A governs private sector employees. Petitioners argued that the state civil service law to which they were subject did not contain any express prohibition against forming more than one union per workplace and that the LFT should be applied to supplement the omission in the Civil Service Law.(126) As the LFT governs private sector employment, the petitioners in the Oaxaca case cited Article 123 Section A, not B, as constitutional support for the right to organize found in the LFT. The Oaxaca petitioners also claimed that the Board had violated the Supremacy Clause of the Mexican Constitution, Article 133, by failing to follow the provisions of ILO Convention 87, which Mexico adopted and published in the Diario Oficial on October 10, 1950. The Court's analysis of the right to organize is primarily set forth in the Guadalajara decision and is repeated verbatim in the Oaxaca decision.(127) The Court takes an unusual approach in looking at the legislative history of Constitutional Article 123 in order to determine the legislative intent of Section B of Article 123.(128) The Court found that the right to organize is protected by both Constitutional Article 123(A) and (B).(129) The legislative comments at the time of the adoption of Section B of Article 123 in 1959 noted that freedom of association is one of the most basic of workers' rights and one of the first to be recognized in the international labor movement. The legislative comments further stated that:
The court noted the dates on which Article 123 underwent further amendment, and cited the legislative comments to the 1978 and 1993 amendments. The 1978 comments noted the significant role played by union and stressed the importance of government non-interference with the right of association.(131) The 1993 comments observed that Mexico became a signatory to ILO Convention 87 and notes that signatory governments are obligated to respect workers' rights to organize and collectively bargain. The comment states that freedom of professional association is not only a fundamental social right, but is a necessity.(132) After reviewing the legislative history of Article 123, Section B, and the subsequent amendments to Article 123, the Court concludes that the legislature's intent was to protect freedom of association in a broad sense, from the right of the individual worker to form associations to the collective right that arises when a union is formed and acquires an existence of its own.(133) On the basis of the legislative history of Article 123(B) and noting the protections of ILO Convention 87, the Court concludes that laws issued by the states to govern their state public sector employees must respect the principle of freedom of association under constitutional Articles 116(V) and 123.(134) The Court then invokes the Supremacy Clause of Article 133, noting that the freedoms protected in Article 123 and confirmed in ILO Convention 87 may not be restricted by any secondary federal or state laws.(135) The Court notes that Article 133 imposes an obligation on state judges to follow the federal Constitution, even when its provisions conflict with state constitutions or local laws. The obligation to follow federal constitutional principles was not observed by the State of Jalisco in enacting its bureaucratic law, as it did not follow the protections of Article 123, which is of superior rank.(136) The Court rejected the respondents' arguments that the Jalisco state law does not restrict or reduce the right to organize. Instead, the Court notes that the right to organize established in Article 123 encompasses three fundamental aspects: the right to agree to the formation of a union; the right to refrain from joining a union, and the right to terminate one's membership in a union. The lower court's decision, which tends to diminish some of these rights, has the effect of restricting freedom of association and is therefore in violation of Constitutional Article 123.(137) The Court based its decision in both the Guadalajara and Oaxaca cases on the protections contained in Constitutional Article 123 and ILO Convention 87, both of which are controlling laws by operation of Constitutional Article 133. Interestingly, the Court avoided a discussion of the general right of freedom of association established by Constitutional Article 9, which was invoked by the petitioners in both cases. On January 15, 1996, the Mexican Supreme Court ruled that Article 1 of the LFTSE was unconstitutional. With this ruling, all unions representing decentralized government agencies were declared to be governed by Constitutional Article 123(A), instead of Subsection B.(138) Thus, unions representing decentralized agencies are no longer required to belong to the National Federation of Government Employees (Federación de Sindicatos de Trabajadores al Servicio del Estado, "FSTSE"). Up to the time of the Court's ruling, the FSTSE had enjoyed a monopoly on union membership, being the sole federation for unions representing workers subject to Section B of Article 123. Once decentralized agencies were found to be covered under Section A, the FSTSE lost 52 of its 82 members. These unions will now be subject to the LFT, which contains no restrictions prohibiting the formation of more than one federation of unions. A previous decision involving workers of the Sindicato de Pesca issued by the Second Collegiate Circuit Tribunal established that more than one union may exist in the workplace. This decision foreshadowed the Supreme Court ruling in Amparo No. 337/94 and 338/95. E. Anticipated Impact of Amparo Decisions 337/94 and 338/95 These two decisions are undoubtedly significant in that they signal a departure from a restriction of the right to organize that has existed in the government workplace since the adoption of Constitutional Article 123(B) in 1960 and the adoption of the LFTSE in 1963. The decisions do not, however, constitute binding jurisprudence. As discussed in Section II.B.2, at p.11, supra, the SCJN must issue five consecutive decisions on the same point before the lower courts are required to follow the legal principle established in those cases. Justice Ortiz Magayoitia acknowledged that, under the Amparo Law, any citizen may sue to protect his constitutional rights and, although amparo is granted, the law remains in effect. The effect of the law is suspended only as to the person who received amparo, although the high Court has declared the law unconstitutional.(139) It is possible that the two decisions could fail to become binding and thereby have a limited effect. Some labor experts believe that the Court's failure to base its decision on Article 9 could indicate an unwillingness to expand on the effect of its ruling.(140) On the other hand, other factors suggest that the Court's decisions may soon become jurisprudence. First, in light of the decisions, there may be an increase in amparo suits filed against similar one union per workplace restrictions. The fact that the Court issued two decisions on this point in one day may be an indication that it would rule the same way on future suits challenging similar state laws or against the restriction contained in the LFTSE. This indication is strengthened by the fact that the Court reiterated its Guadalajara ruling in the Oaxaca case, instead of attempting to distinguish the two cases and thereby weaken the effect of the ruling. Finally, even if the two cases do not eventually become binding jurisprudence, there is an increasing tendency in Mexico for lower courts to follow high court decisions as persuasive law.(141) With regard to the public sector, the decisions may have an impact on the right to form federations as well as on the right to form unions. The LFTSE also contains a provision which prohibits government employee unions from forming more than one federation of unions.(142) The Guadalajara decision implies that workers are not only free to form more than one union, but also more than one federation. The decisions may have a future impact on private sector employment. While the LFT does not contain any restrictions prohibiting private sector employees from forming more than one union per workplace, the LFT does permit the use of exclusivity clauses in collective bargaining agreements. Closed shop agreements are permissible, thereby forcing workers to join the dominant union before they may be hired. The worker who leaves the union or is expelled from membership will lose his job. One issue that arises is whether, if the LFT provisions sanctioning the use of closed shop agreements are challenged in a future amparo suit, the SCJN would find them violative of Constitutional Article 123. In the Guadalajara and Oaxaca decisions, the Court held that there are three basic aspects of the right of association: the right to join a union, the right to refrain from joining a union, and the right to leave the membership of any particular union. Arguably, the existence of closed shop agreements cannot be reconciled with these basic rights. If a worker is forced to join a specific union in order to obtain employment, or if the worker may be fired upon leaving union membership, he is not truly free to refrain from joining a union and is not free to terminate his union affiliation. Another issue that may arise in an amparo challenge in private sector employment is the de facto restriction that exists in practice against more than one union, whereby unions applying for registration are denied recognition by local labor boards. The unions are often denied registration for arbitrary reasons, often where another union already exists in the workplace. The decisions in question have ignited a flurry of controversy in Mexico. The Guadalajara and Oaxaca cases, along with Amparo 1/96 are seen by some as dealing a blow to union corporatism, which has long been regarded as one of the cornerstones of the PRI, Mexico's dominant political party.(143) H,ctor Vald,s Romo, the head of the FSTSE, decries the decisions as provoking social instability on an unforeseeable scale, believing that free association among government workers will divide the FSTSE and allow opponents of the union system to interfere in the system to advance their own ends.(144) Some, like Labor Secretary Javier Bonilla, have attempted to quell the negative outcry by minimizing the significance of the decisions, indicating that the May 21, 1996 decisions do not create binding jurisprudence and affect only the parties to the amparo suits.(145) Others, such as labor lawyer Lic. Arturo Alcalde Justiniani welcome the decisions as expanding the collective rights of thousands of government workers.(146) Well-known labor lawyer Lic. Baltasar Cavazos Flores, an attorney who primarily represents management, does not believe that the decision will affect either public or private sector employees. He also does not believe that the SCJN will modify the exclusivity clause.(147) Lic. Manuel Ahumada de la Madrid, a former CAB judge from the State of Colima, does not believe that there will be a direct impact in the private sector. He cites LFT Article 386, which defines the collective bargaining agreement as the agreement celebrated between one or more unions and one or more employers.(148) He opines, however, that the decisions may have an indirect effect in that the SCJN may have left the door open to an amparo suit challenging the exclusivity clause in collective bargaining agreements. He notes that the SCJN has upheld the constitutionality of such clauses in the past, but observes that the Court is empowered to go against its former decisions on this point.(149) Finally, he notes that the Court has paved the way toward a greater democratization of the union system and undercut the large monopolistic unions that instead of benefiting workers and employers, often act against their interests.(150) Lic. Rogélio Sánchez Cortés, a former CAB president currently in private practice representing management, believes that lower courts should follow the May 21, 1996 decisions. He opines that the decisions mark the beginning of a new era in which the government begins to lose its control over unions, which are more vehicles of political control than true professional associations for the defense of their members' interests.(151) He, too, sees no direct impact on the private sector from the Guadalajara and Oaxaca decisions, but sees the possible beginning of a free unionization, which would not be either manipulated or controlled by the federal or state governments.(152) He does not believe that the Court left the door open to modify the exclusivity clause; he sees the clause as completely different from freedom of association. He sees the clause as an internal tool used by labor unions in their own defense.(153) Sanchez notes that labor unions in Mexico have always been controlled by the federal and state governments and that the PRI has always played a defining role in the life and operation of the labor unions. The government decides whether a union is granted registration and therefore there are no independent unions in Mexico, because most are controlled by the CTM (Confederación de Trabajadores de México), CROC (Confederación Revolucionaria Obrera y Campesina) and other large unions that are essentially agencies of the government. If free unionization is truly respected in Mexico, he muses, we could initiate a true system of unionization.(154) The LFT has never imposed restrictions on the number of labor unions that may exist in the private sector workplace. In Amparo Nos. 337/94 and 338/95, the SCJN ruled on the validity of one-union-per-workplace restrictions found in state law provisions, holding that such restrictions may be contained in state laws governing public sector workers. Although the decisions are significant portents of where the Court may be heading, the rulings do not have a direct impact at the national level. While the Court has ruled that one-union-per-workplace restrictions contained in state laws violate Constitutional Article 123, the Court did not address the identical restriction in the LFTSE, the federal law governing public sector workers. Arguably, the right of public sector workers to freely organize has always been protected by Article 123 of the Mexican Constitution. The Court's decision, then, as Justice Magayoitia has stated, simply followed the applicable constitutional provisions.(155) Nevertheless, the timing of the Court's decisions is intriguing. The decisions come at a time when a newly constituted Supreme Court is establishing its authority in the shadow of the Zedillo administration, the same administration that sent the old Supreme Court packing. Opinions in Mexico differ as to whether the new Court will serve as a model for a truly independent judiciary, or will ultimately cater to the interests of the Executive branch. The Court's decisions may signal a largely political response to several factors discussed below. First, the May 21, 1996 amparo decisions are perceived as a blow to the corporatist labor relations system that exists in Mexico, whereby the long-standing alliances between the dominant political party, the PRI, and the large "official" unions such as the CTM, CROC, permits the government to retain pervasive control over all sectors of the society and economy. As a result of these alliances, the large government-affiliated unions have reflected government policies in collective bargaining negotiations, particularly the policy of maintaining a low-wage labor environment to attract foreign investment. By signing the Mexican government's pact for stability, competitiveness and employment, the large unions have undertaken not to attempt to obtain wage increases larger than ten percent.(156) As real wages in Mexico have declined, tensions between the PRI and the unions have grown.(157) The Court's rulings may signal a response to those tensions and signal the government's willingness to move away from the corporatist model of labor relations in an attempt to make Mexico's labor environment more competitive in the world market. The Supreme Court decisions may also signal a response to pressures brought to bear on the Mexican government by the ILO. In the Oaxaca case, the Court noted that the ILO Commission of Experts on the Application of Treaties and Recommendations, in its 69th Session, observed that Mexico's labor laws conflicted with the provisions of ILO Convention 87. The Commission specifically noted that the one-union-per-workplace restrictions of the LFTSE conflict with the Convention and expressed its hope that the Mexican government would modify its labor laws to bring them into accord with the Convention. While the amparo rulings in question addressed the one-union-per-workplace restriction contained in state laws modeled after the LFTSE, they imply that the Court would, in all probability, set aside the one-union restriction in Article 68 of the LFTSE. The rulings on the state law restriction will almost certainly prompt the filing of an amparo suit challenging the identical LFTSE restriction. The ILO Commission commented on additional provisions of the LFTSE, including Article 69, which prohibits workers from leaving a union unless expelled, and LFTSE Article 84, which provides that there can be only one federation of public sector labor unions. While the Court did not specifically address the one-federation restriction, its May 21, 1996 rulings suggest that restriction would also run afoul of the freedom of association guarantees contained in constitutional Article 123. The Court did specify that the right of association has three aspects: (1) Workers have the right to join an existing union or form a new one; (2) Workers have the right to refrain from joining any specific union or to refrain from joining any union at all; (3) Workers have the right to terminate their membership with any union. (See Appendix A at 51-52). In light of the Court's definition of the rights protected by constitutional Article 123, it appears likely that an amparo challenge to LFTSE Article 69 would be successful. The greater question is what the Court might do if faced with an amparo suit challenging the use of exclusivity clauses in private sector labor. The Court has upheld the use of such clauses in collective bargaining agreements in the past. This is, however, a new Court capable of reversing established precedent on this issue. Whether it will do so in the future and thereby promote the formation of independent unions and increased democracy in Mexican labor relations is a question that only the Court can answer. 1. The Mexican Constitution was adopted by the Mexican Congress on February 5, 1917. 4. The text of Section B was published in the Diario Official on December 5, 1960. 12. As amended by decree published in the Diario Oficial on March 17, 1987. 17. Mexican Constitutional Articles 14 and 16. 19. BAKER, supra, n. 16 at 104. 21. JUVENTINO V. CASTRO, HACIA EL AMPARO EVOLUCIONARIO 11 (cuarta Edición, Editorial Porrúa, 1993). 22. Article 133, Mexican Constitution. 25. Amparo Law, Article 195 bis. 38. Appendix C, See Second Transitional Article. 50. Ley Orgánica de los Artículos Constitucionales 103 y 107. 52. Semanario Judicial de la Federación, 5a. Epoca, T. LXXXIV, p. 3895 53. Instituto de Investigaciones Jurídicas, ob. cit. Vol. 2, p. 838 54. Alfonso Noriega, Lecciones de Amparo. 55. As amended by decree published on January 18, 1934. 60. "A nadie se puede coartar el derecho de asociarse con cualquier objeto lícito." 73. LFT Articles 366, 381 and 384. 78. NAVARRO, supra n. 67 at 372. 80. Id; See also NUGENT, supra, n. 62 at 211-214. 81. Interview with labor lawyer María Teresa Guerra Ochoa, interview conducted on November 15, 1996. 91. See NUGENT, supra, n. 62 at 206. 94. See NUGENT, supra n. 62 at 204. 99. See responses from Lic. Baltasar Cavazos Flores and Lic. Maria Teresa Guerra at Appendix E. 103. See NUGENT, supra n. 62 at 213-214. 109. See Mexican Constitution, Article 4(VII). 111. See Amparo No. 337/94, Appendix A, at pp. 17-18. 112. See DE LA CUEVA, supra, n. 97 at 369. 117. See DE LA CUEVA, supra, n. 97 at 370. 119. See DE LA CUEVA, supra, n. 97 at 377. 127. See Amparo 337/94 at 41-56; See Amparo 338/95 at 43-61. 140. Interview with Lic. Manuel Ahumada de la Madrid, interview conducted on October 20, 1996. 147. See Lic. Cavazos Flores' comments at Paragraphs IV and VI, Appendix E. 148. See Lic. Manuel Ahumada's comments at Paragraph 5, Appendix E. 151. See Lic. Sanchez's comments at Paragraph 4, Appendix E. 155. See Appendix F at 20, 23. 156. See NUGENT, supra, n. 62 at 212.
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