U.S. NAO Public Submission 9602
TABLE OF CONTENTS
*Decision of January 23, 1996 by the Conciliation and Arbitration Board of Sonora, denying the registration
Copies of individual complaints for restoration initiated against Maxi-Switch by workers
Letter of February 12, 1996, to Hon. Manlio Fabio Beltrones, Governor of the State of Sonora
Petition of February 14, 1996 to the 3rd District Judge in Hermosillo, Sonora
Decision of March 26, 1996 by the 3rd District Judge of the State of Sonora
SUBMISSION TO THE U.S. NATIONAL ADMINISTRATIVE OFFICE (NAO)
Submitted by the Communications Workers of America, AFL-CIO (CWA), the Sindicato de Telefonistas de la República Mexicana (STRM, or Union of Telephone Workers of Mexico), and the Federación de Sindicatos de Bienes y Servicios (FESEBS, or Federation of Unions in Goods and Services Companies of Mexico). October 10, 1996
1. COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO (CWA), Morton Bahr, President, headquartered at 501 Third Street, N.W. Washington, D.C. 20001-2797, telephone: (202) 434-1110, fax: (202) 434-1139. The CWA signed an alliance with the Mexican and Canadian telephone worker' unions on February 15, 1992, to jointly support each other on issues of common concern. The CWA is an affiliate of the American Federation of Labor - Congress of Industrial Organizations (AFL-CIO), and of the Postal, Telegraph and Telephone International (PTTI).
2. FEDERACION DE SINDICATOS DE EMPRESAS DE BIENES Y SFRVICIOS (FESEBS). Benito Bahena Lome, Secretary General of the National Executive Committee, headquartered at number 16 Calle Rio Neva, Colonia Cuauhtemoc, Mexico, Federal District, telephone: (52)(5) 705-3964 and fax: 705-5176
3. SINDICATO DE TELEFONISTAS DE LA REPUBLICA MEXICANA-STRM (Union of Telephone Workers' of Mexico), Francisco Hernandez-Juarez, Secretary General of the National Executive Committee, headquartered at number 16 Calle Rio Neva, Colonia Cuauhtemoc, Mexico, Federal District, telephone: (52) (5) 705 4653, 702-2100, fax: 703-2583. The STRM is an affiliate of the FESEBS, and of the Postal, Telegraph and Telephone International (PTTI ).
III. Organizations and agencies involved in this case
1. MAXI SWITCH. S.A. DE C.V. (hereinafter called Maxi-Switch), a maquila factory headquartered in the industrial part of the city of Cananea, State of Sonora, Mexico. Maxi-Switch produces and markets high-technology keyboards for computers and game sets. Maxi-Switch is a
subsidiary of the Silitek corporation headquartered Taipei, Taiwan, and has its main office at 2901 E. Elvira Rd., Tucson, Arizona, 85706, Tel. (602) 294-5450, Fax (602) 294-6890. Maxi-Switch owns other factories in Caborca, Sonora, in Penang, Malaysia, in Keeluin, Taiwan and Shen Zhen, Shanghai, China. It has its Distribution Center in Cork, Ireland and other
establishments as follows:
2. The Union of Workers of Maxi Switch, affiliated to the Federation of Unions of Goods and Services Companies (FESEBS'), founded by 56 workers of the Maxi Switch company, who signed the incorporation papers on November 22, 1995, filed for legal registration on November 24, 1995, and was denied legal registration on January 23, 1996. Hereafter called the "Maxi-Switch Union."
3. The local Conciliation and Arbitration Board (CAB) of the State of Sonora, Mexico, headquartered in the state capital of Hermosillo, Mexico.
4. The Union of Workers of Contract Manufacturing Companies, Shoe Stores, Garment Stores and Industries and Commercial Establishments in General of the State of Sonora, affiliated to the Confederacion de Trabajadores de Mexico, (CTM, or Mexican Confederation of Workers).
Beginning in August 1995, a group of workers at Maxi-Switch began to organize a union with the assistance of the Federation of Unions of Goods and Services Companies (FESEBS). The major concerns of the workers included: excessively low salaries of $22.60 Mexican pesos per each eight-hour work period (approximately U.S. $3.00 per day as per the exchange rate on September, 1996) and maximum benefits, causing the exploitation of such workers; and also that the Mexican Federal Labor Law clearly provides a framework under which an employer is required to enter into a collective contract with a legally organized union.
Prior to seeking registration of the union in November of 1995, the leaders of the Maxi-Switch union and representatives of FESEBS met with the Factory Director, engineer ..... to explain that a collective contract would not only serve as an instrument for representing workers, but would also, through training and dialogue, lead to productivity increases and harmonious conditions that would be advantageous to the company as well. However, the company's management ignored the proposal.
As soon as workers stepped up their open campaign to organize the union, Maxi-Switch's management illegally began to use threats and intimidation to persuade workers to abandon their effort. The person in charge of Labor Relations, ..... , told workers they would be fired if they joined the union, while promising other workers they would benefit if they resigned from the union. On November 14, 1995, union activist ....., an employee working on Game-boy equipment, was fired from his job by supervisor ...... He was later told by ..... from the Maxi-Switch personnel office that he was being fired because he was trying to organize a union. (He filed a suit for reinstatement on December 7, 1995, a copy of which is attached).
About that same time, workers began to hear a rumor that the Company had surreptitiously signed a collective contract with another union in an attempt to avoid having to bargain collectively with the one in formation. As with other such "protection contracts" with "phantom unions," as they are called in Mexico, the workers had no information about the identity of the alleged union, the provisions of its bylaws, or the content of the alleged collective contract.
Despite illegal pressures and threats by the Company, workers continued to organize. The Organizing Commission of the union in formation issued a formal call to hold an assembly to incorporate the union, which was duly constituted on November 22, 1995. At the assembly, workers elected their officers, adopted bylaws, voted to affiliate to FESEBS, and completed the other required procedures for union recognition.
Immediately afterward, on November 24, 1995, the new union's officers presented all the documents required by Article 365 of the Federal Labor Law (FLL) to the competent authority, the Sonora Conciliation and Arbitration Board (CAB), headquartered in the State Capital of Hermosillo. In this case it is important to note that the Board's government representative and chairman, appointed by the Governor of the State of Sonora, is also a member of a rival union confederation, the Confederation of Mexican Workers (CTM), as is its labor representative. The officer in charge of the State Labor and Social Provision Department also belongs to the CTM.
Shortly after the submission of the application for registration of the Maxi-Switch Union, on November 28, 1995, a supervisor named ..... also known as ..... approached the newly elected 18-year-old Secretary General of the Union, ....., and began pushing her to remove her from the factory. When ..... tried to remove .....'s hands from her shoulders, he brutally punched her twice in the back. Despite .....'s screams for help, neither her immediate supervisor, ....., nor another supervisor named ....., intervened. The other workers were afraid to intervene.
After punching ..... continued to verbally abuse and threaten her. She was then taken to the administrative office where a representative of the Company, reportedly the Warehouse Supervisor, gave her resignation papers and threatened to accuse her of robbery if she refused to sign. ..... also warned her against taking any legal action against ..... since he was carrying out the orders of the Company. Deeply shaken and fearful of further reprisals, ..... signed the resignation papers.
After being advised that any resignation obtained under such duress was invalid under Mexican Law, ..... filed for reinstatement with the Cananea Conciliation and Arbitration Board on December 8, 1995 (file 269/95): ..... also refused to accept any severance pay. ..... also filed a criminal complaint with the Attorney General's office in Cananea. As of this filing, neither complaint has been acted upon. In the meantime, ..... continued to serve as General Secretary of the union in formation.
After the forced dismissal of ....., two more union officials were fired. ....., a member of the union's Commission of Honor and Justice, was fired, and ....., Secretary of Organization and an operator in the "Proform Area," was fired on February 27, 1996, by ...... These workers refused to accept severance pay and filed complaints requesting reinstatement with the local Conciliation and Arbitration Board, based on dismissal without just cause (copies are attached). As of this filing, none of these complaints have been acted upon.
In addition to these dismissals, the company has repeatedly threatened workers with massive layoffs and even the closing of the factory if they persist in their efforts to form a union.
On January 23, 1995, the Sonora Conciliation and Arbitration Board handed down a decision denying legal recognition to the union on the sole grounds that "MAXI SWITCH. S.A. DE C.V. already has a Collective Laoor Contract signed with a state union which the workers must observe as provided in the aforementioned Collective Contract, based on Article 366, item I of the Federal Labor Law." [File No. 234.4"96"1 (377). The full text of the CAB ruling is attached, page 67 of this submission.]
Although the CAB refused to divulge the name of the supposed union or a copy of the contract, it was later found out from sources inside the CAB that the alleged contract was signed on September 20, 1995, under file number 376/95, shortly after company management became aware that a union organizing drive was under way at Maxi-Switch. It was also found out that the alleged union is called the "Union of Workers of Contract Manufacturing Companies, Shoe Stores, Garment Stores and Industries and Commercial Establishments in General of the State of Sonora", and that it is affiliated to the Mexican Confederation of Workers (CTM), the same confederation to which both the Chairman and the labor representative of the Sonora CAB belong.
By denying recognition to the Maxi Switch union, the CAB deprived its members of their legal right of association under paragraph XVI of Section A of Article 123 of the Constitution of Mexico, and deprived its newly elected union officers of the legal standing to conduct union business, including internal union activities under Article 359, establish an office and purchase equipment and furniture under Article 374, represent individual members in grievance procedures or legal complaints under Article 375, negotiate a collective contract with the company under Articles 386-389, and conduct representational activities before government authorities under Article 368, except for the privilege of maintaining legal standing to appeal the decision through the injunction (Amparo) process, as provided for by a Supreme Court ruling No. 15/91, issued in October, 1991.
Using this sole remaining privilege, attorneys for the FESEBS-affiliated Maxi-Switch Union filed for an injunction (amparo #P/0109/96) with the 3rd District Court of Hermosillo on February 14, 1996, against the Sonora CAB on the grounds that in addition to violating the provisions of the Mexican Constitution, and Article 366 of the FLL, the CAB's decision to deny registration was technically flawed because it contained only one illegible signature, that of ....., the Secretary General for Collective Matters of said Board, instead of the three signatures clearly required under Article 839 of the Federal Labor Code. On March 26, 1996, the district judge granted the injunction on technical grounds, annulling the CAB's decision and forcing the CAB to issue a new decision. However, the district judge issued no opinion on the legal matters in the case, and the CAB has so far abstained from issuing a new decision, either denying or granting the registration sought by the FESEBS-affiliated Maxi-Switch union.
The facts of the Maxi-Switch case illustrate four ways in which the Mexican government persistently fails to enforce its laws protecting workers:
First, the Mexican government has failed to "ensure that tribunals that conduct or review [labor] proceedings are impartial and independent and do not have any substantial interest in the outcome of the matter" [Article 5.4];
Second, it has failed to "ensure that its administrative, quasi-judicial, judicial and labor tribunal proceedings for the enforcement of its labor law are fair, equitable and transparent [Article 5.l];
Third, it has failed to "effectively enforce its labor law" regarding protection of workers against illegal dismissals and other forms of retaliation against legitimate union organizing activities "through appropriate government action such as initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labor law" [Article 3.1 (g)] , and;
Fourth, it has failed to "effectively enforce its laws" related to freedom of association, minimum employment standards, and overtime pay, "through monitoring compliance and investigating suspected violations, including through on-site inspections ... and through encouraging the establishment of, worker management committees to address labor regulation of the workplace" Article 3.1 (b) and (e). If these problems are not quickly remedied through good faith efforts, the Mexican government will clearly continue to be in non-compliance with its obligations under the NAALC.
In analyzing Mexican law, it is important to remember that international treaties signed and ratified by Mexico also take on the force of law, and in cases Miere legal provisions may conflict with international treaty obligations, it is the latter that apply. Article 133 of the Constitution states:
In addition, the Federal Labor Law in Article 6 provides that "the respective laws and treaties signed and approved under the terms of Article 133 of the Constitution shall apply to labor relations in all matters that benefit workers, as of the their valid date."
Thus the conventions of the International Labor Organization ratified by Mexico, and the obligations of the NAALC, are fully enforceable legal provisions under Mexican law.
Ironically the legal provision cited as justification for the Sonora CABs rejection of the Maxi-Switch union's application clearly obliges it to reach the opposite decision:
Article 366 of the FLL states that a union's "registration may only be denied: (I) if the union does not have the purpose provided for in article 356; (II) if it was not organized with the number of members provided in article 364; and (III) if the documents referred to in the preceding article are not exhibited." Even more pointedly, Article 366 goes on to stipulate that "having satisfied the requirements established to register unions, none of the corresponding authorities can refuse it, (our emphasis added)" and that "if the ...authorities fail to act within 60 days, the registration becomes automatic (our emphasis added)" (See Appendix I for the full text of these laws).
There appears to be no question on the part of the CAB that the FESFBS-affiliated Maxi-Switch union met the formal legal requirements for union registration:
In meeting the first requirement as set forth in Article 356, that a union's purpose must be to "study, improve and defend their [members] interests," the Maxi Switch union's bylaws, in Article 3, state that its purpose is "to study, improve and defend the legal and historical interests of the workers who form it and to fight to raise their living and working conditions and to fortify their class democratic consciousness and practice" The second requirement, that the union in formation be supported by "at least 20 workers in active service" as provided in Article 364, was more than met by the Maxi-Switch union, which attached a list of 56 duly authorized signatures to its application form (a copy of the petition is attached). The third requirement, that certain documents be submitted with the application as set forth in Article 365, was also met by the FESEBS-affiliated Maxi Switch union with the help of competent legal advisors.
Instead of questioning whether the FESEBS-affiliated Maxi-Switch union met these formal requirements, the Sonora CAB based its decision solely on the existence of previously signed labor contract with another union in the factory. Yet, nowhere does Article 366, or any other provision of the FLL, state that a union's registration may be denied if another union is already recognized in the enterprise whether or not it has signed a collective contract. Furthermore, ILO Conventions 87 and 98, which Mexico has ratified, clearly require that any group of workers have the right to form a union without prior authorization, regardless of whether other unions may exist in the enterprise or industry. In addition, Mexican law does not prohibit the existence of more than one union in the workplace, nor workers of a company from belonging to several unions.
Legal precedent supports FESEBS-affiliated Maxi-Switch union*
Legal precedent for this view may be found in a ruling by the Sixth Collegiate Labor Court of the First Circuit of "Amparo" (Constitutional Lawsuit for the protection of private guarantees), which must be enforced, according to the Mexican "Amparo" Law, by all authorities of the Country: The ruling states:
Existence of a collective labor contract is not a reason to deny certification of a new union
Nor does the existence of a previous collective labor contract provide any legal grounds for rejecting the registration of a new union. It may indeed restrict the new union from negotiating another contract or from gaining the right to administer the existing contract (titularidad), but only if the new union has fewer members than the existing one with which the contract was signed. If the new union has more members than the old, it may gain the legal right to bargain and administer the collective contract. The FLL provides for this transfer of titularidad in Articles 388 and 389, where it states that "if there are several unions in the same company... the collective contract shall be signed with the one that has the highest number of workers in the company," and that "loss of the majority referred to in the preceding article declared by the Board of Arbitrage produces the loss of the legal right (titularidad) over the collective labor contract." Although the law does not specify a method to by used by a CAB in determining which union has the most members, presumably this could be done by the simple procedure of comparing the membership lists of the two unions to find out which has more (see Annex 1 for the full text of these articles.)
Sonora CAB failed to enforce Mexican labor law
It is thus clear that in rejecting the union's application for registration on the grounds stated, the Sonora CAB failed to properly enforce Mexican labor law, as well as ratified ILO conventions. Furthermore, by favoring one union over another, the Sonora CAB violated the Mexican government's obligations under the NAALC Article 5(4) to guarantee that its labor laws are administered in an impartial and independent manner by authorities without a substantial interest in the outcome. Since two of the CAB members are affiliated to the same union confederation favored by the CAB, it cannot be ruled out that they lack a "substantial interest" in the outcome. To avoid such a conflict of interest, the Mexican government should adopt regulations that instruct the CAB's to automatically grant legal recognition to all unions that properly apply meet the formal requirements, regardless of whether other unions exist in the enterprise, as already provided in its labor law and ILO conventions.
What the Sonora CAB should have done under Mexican law was to first recognize the new FESEBS-affiliated Maxi Switch union, and then, if another union existed with a collective contract, make a determination as to which union had the most members by comparing their respective membership lists. In that way, Maxi Switch workers could choose their own union, rather than having the government and the company choose it for them.
The favoritism shown by the Sonora CAB in denying recognition to union supported by workers while hastily certifying a contract with a pro-government union unknown to the workers is common practice in Mexico. Such actions have been reported in other cases to come before the NAO, such as the Sony and Honeywell cases, and have been documented in publications commissioned by the NAO. For example, Paul Curtis and Alfredo Gutierrez report that in the State of Chihuahua.
The same authors report that in Monterrey, Nuevo Leon, "the unions are promoted and formed by the companies," who register and sign collective contracts deposited with the local CAB. When any other union tries to organize, the existence of the contract is made known and the organizing attempt is thwarted. "The collective contracts signed under this arrangement are usually called protection contracts because they prevent others from coming into the area." [Ibid., p 48]
It is important to clarity that the purpose of this petition is to ensure that Mexican workers are afforded a free choice in deciding which union they prefer, in accordance with Mexican law and ratified ILO conventions, without fear of retaliation by company or government authorities. The choice of union must be made by the workers involved, not the company or the government.
The Sonora CAB violated the rights of the Maxi-Switch union members in another important respect; namely by failing to guarantee that its administrative proceedings are "fair, equitable and transparent," as required in Article 5 Section 1 of the NAALC.
The Sonora CAB refused to disclose the name of the alleged previously existing union in the factory, its date of incorporation, the names of its officers, a copy of its bylaws, a copy of the alleged previously existing contract, or its date of signature. Nor did it provide any opportunity for a hearing or any other procedure by which the Maxi Switch union representatives might obtain this information.
Workers at Maxi Switch thus have no formal or official communication regarding the contents of any valid labor contract or union bylaws, and are thus unable to determine their rights and obligations under these instruments. Although copies of the union statutes and the collective contract are on file with the CAB, no one except for the officially recognized union and the company management may have access to them.
According to attorneys for the FESEBS-affiliated Maxi-Switch union, and in line with other attorneys interviewed regarding this matter, the withholding of collective contracts and union bylaws from workers is common practice in Mexico. Without access to the collective contract, workers have no idea whether management is living up to the terms of that contract. Without access to the union bylaws, the workers lack the essential information they need about how to they might participate in the union's decision-making procedure and elections. Withholding this vital information is neither sanctioned under Mexican law, nor is it fair, reasonable or transparent, as required by the NAALC.
To meet its obligations under the NAALC, the Mexican government should develop regulations which allow workers of any enterprise, where there exists a recognized union and a registered collective contract, access to copies of the union bylaws, and the collective contract.
In firing four union leaders at Maxi-Switch, the company violated the procedures set forth in Chapter IV of the FLL governing dismissals, which require an employer to provide written notification for dismissal and which allow for dismissals only in cases of "just cause." If there is no just cause, the employee may request that the CAB for either reinstatement or severance pay, at the choice of the employee. Article 48 also provides for back pay, stating that "if the employer fails to show the cause for dismissal in the proceedings, the workers shall be entitled, in addition to whatever the action exercised might have been, to be paid the salaries accrued from dismissal to the effective date of the award."
In addition to violating the laws governing dismissals, the company clearly violated:
Article 133 (IV) of Mexico's labor code, which states that "employers are forbidden to ... oblige workers through coercion or any other means, to affiliate or withdraw from the union or association to which they belong, or to vote for a specific candidacy."
Article 133 (V) prohibits employers from "intervening in any way in the internal affairs of a union."
Section XXII of Article 123 of the Constitution states in part: "An employer who dismisses a worker without just cause or because the worker has entered an association or union, or for having taken part in a lawful strike, shall be required, at the election of the worker, to either fulfill the contract or indemnify him in the amount of three months wages."
Finally, convention l35 of the International Labor Organization (ILO), which Mexico ratified on January 21, 1975 and thereby made part of its legally enforceable body of law, states that "representatives of workers in a company must have efficient protection against any act that could injure them, including being fired because of their condition as representatives of workers, for their activities as such, for their membership in the union, or for participating in union activities, as long as said representatives proceed according to the law, collective contracts or another common agreement in effect."
In the case of the four Maxi-Switch workers fired for their union activity, despite having filed for reinstatement between six to nine months ago as of the date of this submission, the Mexican authorities responsible for enforcing these laws have not acted to enforce them, and the four workers in question remain without a job. This is a common occurrence in Mexico, as evidenced in other submissions to the NAO.
To be in compliance with its obligations under the NAALC, especially Article 3.1(g), which requires that the signatory governments "effectively enforce its labor law through appropriate government action ... such as initiating, in a timely manner, proceedings to seek appropriate sanctions or remedies for violations of its labor law," and Article 5.l(d), which obliges the signatory governments to ensure that its labor proceedings are not necessarily complicated and do not entail unreasonable charges or time limits or unwarranted delays," the Mexican government must reform its labor complaint procedure to ensure that workers who are illegally fired for legitimate union activities are promptly reinstated in their jobs.
The petitioners request the U.S. NAO to:
Morton Bahr, President
Francisco Hernandez-Juarez, Secretary General
Benito Bahena Lome, Secretary General