Legal Memorandum on Submission 9901 (TAESA)

TABLE OF CONTENTS

I. Introduction

II. TAESA Flight Attendants Lawsuit Before the Federal Conciliation and Arbitration Board

III. Right to Union and the Execution of a CBA

IV. Analysis of CAB and Amparo Decisions with Respect to Mexican Labor Law

A. 1997 CAB Resolution

B. December 17, 1997, Amparo

C. October 1, 1998, CAB Decision

D. October 22, 1998, Amparo

E. March 12, 1999, CAB Decision

F. June 18, 1999, Amparo

G. March 12, 1999, CAB Decision (Re-count Evidence)

V. Conclusion

VI. End Notes

I. INTRODUCTION

The National Law Center for Inter-American Free Trade (NLCIFT) submits this legal memorandum to the U.S. National Administrative Office (NAO) in response to a request to analyze Mexican federal labor law related to U.S. NAO Submission 9901 (TAESA) filed by the U.S. Association of Flight Attendants (AFA) and the Association of Flight Attendants of Mexico (ASSA). This analysis of Mexican labor law focuses on the opinions, determinations and conclusions reached by the Junta Federal de Conciliación y Arbitraje (Federal Conciliation and Arbitration - CAB) Special Board #2 and relevant Mexican court decisions rendered in the case presented by TAESA flight attendants. Specifically, the following decisions are reviewed and discussed:

• CAB decision #1 on September 24, 1997, file IV-392/97

• CAB decision #2 on October 1, 1998, file IV-392-97

• CAB decision #3 on March 12, 1999, (Expediente IV-392/97 joined with Expediente IV 858/98)

• Amparo decision #1 of the First Appeals Circuit Court on December 17, 1997, file 1340/97

• Amparo decision #2 of the Ninth Three-Judge Circuit Court in Labor Matters of the First Circuit, file DT-13879-98

• Amparo decision #3 of the First District Court on Labor Matters of the First Circuit Court of Appeals on June 18, 1999, file 429/99

• Amparo #4 of the Ninth Three-Judge Circuit Court on Labor Matters of the First Circuit on February 9, 2000, file DT-13439/99

This memorandum examines these decisions to ascertain the extent to which they are consistent or vary from existing Mexican law and precedents, especially in regard to the collective bargaining unit for the flight attendants. This memorandum also addresses the issue of whether TAESA flight attendants have been accorded due process in their attempt, as a union, to exercise the right to negotiate a separate collective bargaining agreement with TAESA management.

II. TAESA FLIGHT ATTENDANTS LAWSUIT BEFORE THE JUNTA FEDERAL DE CONCILIACIÓN Y ARBITRAJE (FEDERAL CONCILIATION AND ARBITRATION BOARD - CAB)

On July 8, 1997 the Flight Attendants Union filed a labor lawsuit before the CAB, No. IV-392/97(lawsuit).¹ The parties to the suit were: 1) as plaintiff, the Flight Attendants Union; and 2) as defendants, Transportes Aéreos Ejecutivos, S.A. de C.V. (TAESA), and the Sindicato Nacional de Trabajadores y Empleados de Transporte Aéreo de la República Mexicana (TAESA Union). (Exhibit A).

The Flight Attendants Union alleged the following conditions and requested the following from TAESA:

1. That the Flight Attendants Union be recognized to represent the majority of the professional flight attendants and therefore, entitled to administer and represent the existing Collective Bargain Agreement (CBA) executed with TAESA in connection with all flight attendants working for TAESA (Juicio de Titularidad de Contrato)
   
   DE LA EMPRESA DEMANDADA:
   
   1. La declaración y reconocimiento de que la Asociación Sindical actora representa el mayor interés profesional por lo que hace a al especialidad de Sobrecargos de Aviación que laboran con ella y como consecuencia de ello le corresponde la administración y titularidad del contrato colectivo de trabajo que rige las relaciones obrero-patronales en su fuente de trabajo, por lo que toca a al especialidad que indicamos.
      
      [Legal recognition that the Labor Union represents the best professional interest in the flight attendants working within the Association, consequently they deserve the legal entitlement and administration of the collective bargaining agreement that governs the relations between employer and employee, because of the specialty before mentioned. (Translation.)]; and
   
   
2. To prohibit TAESA from paying union dues to the TAESA Union.

From the TAESA Union, the Flight Attendants Union requested the following:

1. That the TAESA Union be removed from the administration and representation of the CBA executed with TAESA, because the TAESA Union had lost the representation of the majority of flight attendants within TAESA;

2. To prohibit the TAESA Union from collecting union dues owed by TAESA; and

3. To prohibit the TAESA Union from requesting that TAESA implement and enforce sanctions including terminations of flight attendants.

The CBA executed by TAESA sets forth the terms and conditions of the labor relationship between TAESA and its employees, including flight attendants.² However, the flight attendants presently working for TAESA freely decided to join the Flight Attendants Union, which currently represents the majority professional flight attendants in the Mexican aviation sector.³

To prove its legal standing for this suit, the Flight Attendants Union presented a "re-count" - the procedure by which the TAESA employees freely vote in favor of one union or the other - in accordance with article 931 of the Federal Labor Law (FLL). Such evidence was offered in connection with all of the flight attendants that are currently working in TAESA.

This lawsuit has generated the following Court and CAB decisions:

1. On September 24, 1997, (file IV-392/97) the CAB concluded that the Flight Attendants Union did not have legal standing to proceed. The CAB also decided that it was not possible to fragment (divide) the previously executed CBA between TAESA and the TAESA Union, which establishes the terms and conditions of the existing labor relations between TAESA and its employees (e.g,. pilots, flight attendants, land personnel, among others) and recorded with the CAB. Consequently, the CAB dismissed the lawsuit (sent it to the archives) removing the case from its docket (1997 CAB Resolution, Exhibit B).

2. On October 14, 1997, the Flight Attendants Union filed an "amparo" lawsuit against the 1997 CAB Resolution with the Appeals Court of the First Circuit, file No.1340/97. This amparo was resolved on December 15, 1997 in favor of the Flight Attendants Union (December 17, 1997, Amparo, Exhibit C).

3. On May 28, 1998, TAESA and the TAESA Union filed a Lack of Legal Standing Motion (Incidente de Falta de Legitimación)⁴ against the Flight Attendants Union. On October 1, 1998 (file No. IV-392-97), the CAB ruled on the above-mentioned Motion in favor of TAESA and the TAESA Union. The CAB also dismissed the lawsuit and removed it from the docket (October 1, 1998, CAB Decision, Exhibit D).

4. On October 22, 1998, the Flight Attendants Union filed an amparo lawsuit against the October 1, 1998, CAB Decision with the Ninth Three-Judge of the First Circuit Court on Labor Matters. The resolution, issued on February 1, 1999, ruled in favor of the Flight Attendants Union's amparo based on a finding that the CAB ruling did not follow Constitutional due process procedures or certain applicable provisions of the FLL. The decision focused on the failure to follow procedures concerning the possibility of introducing the re-count evidence, which could prove that the Flight Attendants Union had legal standing to pursue its request for the management and representation of the CBA as established in the lawsuit (February 1, 1999, Amparo Decision).⁵

5. On December 9, 1998, the Flight Attendants Union filed another amparo lawsuit, with the Ninth Three-Judge Circuit Court in Labor Matters of the First Circuit through file No. 13879-98 challenging the October 1, 1998, CAB Decision on the legal standing issue and the dismissal of the suit to the archives. The court ruled in favor of the Flight Attendants Union ordering the CAB to follow the appropriate procedures until the end of the trial (December 9, 1998, Amparo Decision).

6. A third party, the Sindicato de Trabajadores de la Industria Aeronáutica, Similares y Conexos de la República Mexicana,(STIASCRM Union) filed an additional lawsuit against TAESA and TAESA Union, file No. IV-858/98, alleging identical facts and requesting identical remedies to those set forth in the lawsuit by the Flight Attendants Union. The lawsuit filed by the STIASCRM Union also sought the administration and representation of the CBA between TAESA and the TAESA Union. Subsequently, on February 22, 1999, the CAB heard a motion filed by TAESA and the TAESA Union which requested an Incidente de Acumulación (joinder of claims, hereinafter - February 22, 1999, Accumulation Motion).

7. On March 12, 1999, the Flight Attendants Union challenged the February 22, 1999, Accumulation Motion. However, the CAB proceeded with the joinder of these lawsuits (files Nos. IV-392/97 and IV 858/98). Additionally, the CAB permitted the plaintiffs (the Fight Attendants Union and the STIASCRM Union) to present the re-count evidence of all TAESA employees, taking into account records such as TAESA's payroll list, and/or assistance lists, and/or payments to the Instituto Mexicano del Seguro Social (Mexican Institute of Social Security - IMSS), and/or any other proof of the identity of TAESA employees (March 12, 1999, CAB Decision, Exhibit E).

On March 22, 1999, a re-count vote was taken regarding the representation and administration of the CBA resulting in the following:

1. Flight Attendants Lawsuit, file No. IV-392/97, 102 votes;

2. STIASCRM Union Lawsuit, file No. IV-858/98, 2 votes; and

3. TAESA Union, 1442 votes.

8. On April 5, 1999, the Flight Attendants Union filed an amparo lawsuit, with the First District Court on Labor Matters of the First Circuit Court of Appeals challenging the March 12, 1999, CAB Decision to accumulate the lawsuits. On June 18, 1999, the Flight Attendants Union's amparo action in this case was dismissed. The court ruled that accumulation of lawsuits by the CAB was taken in accordance with the FLL (June 18, 1999, Amparo).

9. On September 12, 1999, the Flight Attendants Union filed another amparo lawsuit with the Ninth Three-Judge Circuit Court on Labor Matters of the First Circuit challenging the March 12, 1999, CAB Decision on the basis that the re-count vote was carried-out improperly. The court ruled in favor of the Flight Attendants Union and concluded that the re-count procedure was conducted in an improper manner. Consequently, on February 9, 2000, the court ordered that the IMSS provide a complete list of the TAESA employees who were permitted to vote in the re-count (file No. DT-13439/99). The two lawsuits cannot proceed until the information from the IMSS is provided to the CAB (September 12, 1999, Amparo, Exhibit F).

As noted, the Flight Attendants Union filed a labor lawsuit requesting the representation and administration of an existing CBA in connection with all flight attendants working for TAESA. As explained below, according to the Mexican law, the Flight Attendants Union must obtain the approval of a majority of TAESA's employees in order to administer the existing CBA.

III. RIGHT TO UNION AND THE EXECUTION OF A CBA.

Article 123, section XVI of the Mexican Constitution sets forth the legal foundation for the right of employees to form unions. The FLL expands on this constitutional provision, recognizing the freedom of association of workers and employers.⁶ Thus, a union is considered an association of employees or employers incorporated for the study, development and defense of their respective interests.⁷

Unions must be registered with the Secretaría del Trabajo y Previsión Social (Ministry of Labor and Social Welfare) with respect to federal matters and with the CAB in local matters.⁸ As a general rule, no one may be forced to join or not to join a union.⁹ Unions are entitled to write their own by-laws and rules, to elect freely their representatives, to manage their administration and activities, and to manage their programs.¹⁰ In the event that a union seeks to enter into a CBA, the employer must agree, otherwise employees are entitled to exercise the right to strike.¹¹

IV. ANALYSIS OF CAB AND AMPARO DECISIONS WITH RESPECT TO MEXICAN LABOR LAW.

The following Section presents an analysis of the Amparo and CAB decisions to determine if these decisions are consistent with applicable Mexican law and whether the Flight Attendants Union's due process rights have been infringed in its attempt to exercise the right to manage and represent the flight attendants portion of the CBA with TAESA.

A. 1997 CAB Resolution

In its 1997 CAB resolution, the CAB ruled that the CBA is applicable to all land and air personnel of TAESA and does not apply exclusively to flight attendants.¹² The CAB made two determinations. First, the CAB determined that the Fight Attendants Union did not have legal standing to bring the lawsuit. Second, the CAB determined that, since the CBA applies to all land and air personnel, the CBA could not be divided into portions-one for flight attendants and another for all other TAESA personnel.¹³

The Flight Attendants Union alleges that this 1997 CAB Resolution violates several provisions of the FLL and the North American Agreement on Labor Cooperation between the Government of the United States of America, the Government of Canada, and the Government of the United Mexican States ("NAALC"). Specifically, it is alleged that there were violations of the principles of Plurality Unions and Freedom of Association (Principios de Pluralidad Sindical y Libertad de Asociación Sindical).¹⁴

It does not appear that the CAB violated the principles of Plurality of Unions and Freedom of Association based on the following considerations:

1. The CAB is an arbitration body that does not have the authority to make a determination with respect to these principles. The authority to make such determinations resides with the Ministry of Labor and Social Welfare, which is the administrative office in charge of authorizing or declining the creation of unions and thereby the freedom of association. Article 365 and article 527 section (II) no. 2 of the FLL provide that:

   Art. 365. Unions must be recorded with the Ministry of Labor in cases of Federal jurisdiction and with the [CAB] in cases of local jurisdiction.
   
   Article 527. "The application of the work rules is within the jurisdiction of the federal authorities in the following cases:
   ...
   II. Enterprises
   ...
   2. Enterprises which work under a federal contract or concession, and related enterprises. . ."

2. The primary remedy requested by the Flight Attendants Union is to obtain the administration and representation of the CBA in connection with flight attendants.¹⁵ Pursuant to the FLL, the CAB is permitted to transfer the CBA to the Flight Attendants Union (or other union) only if that union also represents the majority of TAESA employees (including all land and air personnel). (Emphasis added.) In such a case, the union would be fully responsible for the CBA and any legal effects related to its administration and representation.¹⁶ On September 24, 1997, the CAB dismissed the lawsuit (sent it to the archive) because: 1) the CBA applies to both TAESA land and air personnel, including the categories established in document No. 110 dated July 10, 1997 of CBA, and does not exclusively apply to flight attendants. Consequently, the Flight Attendants Union lacks standing to manage and represent all personnel (even though the primary demand in the lawsuit was to manage and represent the part applicable to the flight attendants exclusively); and 2) pursuant to the FLL, it is not legally permissible to divide or fragment an existing CBA,¹⁷ which, according with its own terms and conditions, is applicable to all existing labor relationships within TAESA.

Additionally, the Flight Attendants Union, under the FLL, is considered a trade union, which by definition represents flight attendants exclusively and does not represent other land and air personnel of TAESA.¹⁸ Trade unions are those formed by workers of the same profession, trade or specialty.¹⁹ Based on the above, the lawsuit was dismissed and sent to the archive pursuant to article 396 of the FLL which provides that:

"The terms and conditions established in the [CBA] cover all the persons who work in the enterprise or establishment, even if they are not members of the contracting union, with the limitation established in article 184."²⁰

Further, when there are several unions within the same enterprise, (e.g. trade union; company union; or industrial union), the requesting unions may successfully require a CBA for their respective trades, provided that membership in such unions is greater than the membership in the union vested with operation and management of the CBA.²¹ In this case, if membership in the Flight Attendants Union and the STIASCRM Union exceeded 51 percent of unionized employees of TAESA, these unions could collectively or individually request a review.

This legal provision has been upheld by the Mexican courts in the following case:

AGRUPACIÓN UNIONS, LACK OF LEGAL STANDING OF THE, TO CLAIM THE REPRESENTATION OF A [CBA].

... An employer, having workers that are members of a Labor Union, is obligated to negotiate a CBA with such labor union if this labor union requests a [CBA]. If, within the company, there are employees that belong to different unions... and these employees through their respective unions request a [CBA], the employer will be obligated to negotiate and execute a CBA with the union that has the majority of the workers within the company. If trade unions [such as the Flight Attendants Union] request the execution of a [CBA] in the absence of [company and industrial] unions, a [CBA] shall be executed with the group of unions comprised of a majority of the workers that represents ALL employees within the company, as long as these unions so agree. If they do not agree, each union will execute a separate collective bargaining agreement for its profession...(Emphasis added.)²²

Based on the foregoing, the 1997 CAB Resolution followed the FLL and this legal precedent and did not violate the plurality of unions and freedom of association principles. The information available indicates that the Flight Attendants Union does not currently represent the required 51 percent of TAESA's employees. Additionally, the Flight Attendants Union did not request a separate CBA applicable exclusively to TAESA flight attendants. The Flight Attendants Union requested the transfer to it of management of the current CBA which applies to all land and air personnel. However, the CAB decision dismissing the lawsuit and sending it to the archives violated provisions of the FLL.

B. December 17, 1997, Amparo

In response to the 1997 CAB Resolution, the Flight Attendants Union filed the December 17, 1997, Amparo. The court ruled in favor of the Flight Attendants Union, through file No. 1340/97, on the basis that the Union's rights to due process set forth in FLL, articles 892; 893; 894; and 895 in relation to 873; 388; and 389 of the same statute were violated. The FLL articles are the following:

Art. 892. The rules contained in this chapter regulate the legal procedures applicable to articles 5 section III; 28, section III; 151; 153, section X; 158; 162; 204 section IX; 209 section V; 210; 236 sections II and III; 389; 418; 424 section IV; 427 sections I, II and VI; 434 sections I, III and V; 439; 503; and 505 of this Law and the claims, the objective of which is to collect any compensation not exceeding the amount of three months of salary.²³

Art. 893. The procedures are set forth regarding the filing of a lawsuit, in which the plaintiffs will be able to present their evidence before the competent [CAB], which will provide ten days advanced notice for a "conciliation, complaint and exceptions, evidences and resolution hearing," [audiencia de conciliación, demanda y exepciones, pruebas y resolución, (Hearing)]. This [H]earing must be carried out within 15 business-days following the date of the filing of the lawsuit or when the investigations mentioned in article 503 of this Law are concluded.²⁴

Art. 894. The [CAB], when notifying the defendants, shall warn them that if they do not appear at the Hearing, the petitions will be admitted, unless contrary to Law.²⁵

Art. 895. The [Hearing] will be carried out according to the following rules.

1. The [CAB] will try to resolve matters between the parties pursuant sections I and II of article 876;

2. If conciliation is not possible, each party will present evidence, formulate their petitions, offer and submit the evidence that has been admitted;

3. If a re-count of the workers is offered [raised by the plaintiff], the re-count will observe the rules established in article 931 of this Law; and, (Emphasis added.)

4. Once all the evidence has been submitted, the Board will listen to the allegations and will issue a resolution.²⁶

Art. 899. Special proceedings shall observe the rules established in Chapters XII (evidence) and XVII (ordinary proceedings) of this Title in their relevant parts.²⁷

Art. 388. If there are several unions within the same enterprise, the following rules shall be observed:

1. If there are company or industrial unions, or both, the [CBA] shall be entered into with the union having a greater number of workers within the enterprise;

2. If there are trade unions, the [CBA] shall be entered into with the union group comprised of the unions representing the majority of the tradesmen, provided that they so agree. If they fail to agree, each union shall execute a collective bargaining agreement for the members of its trade; and

3. If there are trade unions and company or industrial unions, the former may enter into a [CBA] for their trades, provided that their membership is greater than the number of workers of the same trade who belong to the company or industrial union. (Emphasis added.)²⁸

Art. 389. Loss of the majority to which the preceding article refers, as determined by the [CAB], shall cause the union to lose its status as the bargaining agent.²⁹

Art. 687. No particular form for appearances, petitions, motions, or pleadings is required in labor proceedings. The parties must specify the object of their petitions and must indicate the grounds on which they are based.³⁰

Art. 686. The procedures in Labor Law and collateral procedures, will be carried out and resolved under the terms established in the present Law. The [CABs] will order the correction of any abnormality or omission noted during the proceeding, in order to normalize the proceeding, without implying that they can revoke their own resolutions, as established on article 848 of this Law.³¹

Art. 689. The following are parties in the labor proceeding, individuals and private entities that prove their legal interest in the process and exercise actions and present opposing arguments.³²

Based on these provisions of the FLL, it is clear that the due process guarantees of the FLL with respect to the Flight Attendants Union's lawsuit were violated by the 1997 CAB Resolution. This violation was remedied by the amparo decision ruling in favor of the Flight Attendants Union which restored its temporary standing. The court sent the case back to the CAB to determine if there was enough evidence to grant permanent standing in favor of the Flight Attendants Union to proceed with the case. The court also ruled that the Flight Attendants Union may present evidence, as well as request and present the results of a re-count procedure, in order for the CAB to determine if the Flight Attendants Union has standing to move forward with the case. This decision is merely a procedural ruling, limited in scope to the issue of standing. The underlying substantive issue - the management and representation of the CBA - is not affected by the amparo decision.

C. The October 1, 1998, CAB Decision

In response to the December 17, 1997, Amparo, the CAB scheduled a Hearing for May 28, 1998. At this Hearing, TAESA and the TAESA Union alleged that the Flight Attendants Union did not have legal standing to proceed with the case (Incidente de Falta de Legitimación).³³ As a result of the Hearing, the CAB ruled in favor of TAESA and the TAESA Union.³⁴ Through the October 1, 1998 CAB Decision (file No. IV-392-97), the CAB once again held that the Flight Attendants Union did not have standing to proceed with the case and once again dismissed the lawsuit sending it to the archives as a completed case.³⁵

The CAB decision in this instance was incorrect. A Lack of Legal Standing Motion, such as the one filed by TAESA and the TAESA Union, must be completely reviewed by a CAB. Under Mexican procedural law, such a review is a condition precedent to any right of action concerning the management and representation of a CBA. The October 1, 1998, CAB Decision did not follow this rationale, since it did not allow the presentation of evidence as required. This view is based on the following decision:

[CBA]. REPRESENTATION OF THE CBA HAS TO BE FILED BY A UNION IN THE SAME INDUSTRIAL SECTOR OF THE COMPANY WHICH IS PARTY TO THE CBA.

Based on an interpretation of articles 17; 259; 380; 389; 460; and 689 of the [FLL], a lawsuit seeking to administer and represent a [CBA] should not be considered when filed by a union that does not belong to the same industrial sector as the company subject of the lawsuit. Given the impact on the party's claim, a motion challenging the legal standing of a party to bring suit must be completely reviewed. Any final decision in a standing issue depends on carrying out proper procedures. The legal standing issue must be completely resolved so that such a decision may be considered valid. Likewise, the plaintiff union must clearly demonstrate to the Board that it belongs to the same industrial sector as the company subject of the lawsuit, because it is a requirement in order to administer the [CBA], in accordance to article 360 of the [FLL]. (Emphasis added.)³⁶

D. The October 22, 1998, Amparo

In response to the October 1, 1998, CAB Decision, the Flight Attendants Union filed an amparo action on October 22, 1998, challenging the CAB decision. Although a copy of this amparo was not included among the documents provided for review, it is assumed that this amparo challenged the second CAB decision that the Flight Attendants Union lacked standing.

It appears that the court ruled again in favor of the Flight Attendants Union and the CAB was ordered to continue with the Hearing and to rule on the Lack of Legal Standing Motion in the final judgment. This decision did resolve the legal standing issue of the Flight Attendants Union:

"... This is true because the action for legal standing must be completely studied given that such action limits a party's right to exercise a collective action [unions]. Any final resolution in a legal standing action is conditioned on carrying out proper procedures. In this way, the legal standing issue must be completely resolved so that a resolution may be considered valid..."

Additionally, the Flight Attendants Union may have also relied upon the following case involving a CAB decision that improperly ended a trial related to the administration and representation of a CBA without having provided the parties with the opportunity to be heard.

[CBA], PROCEDURE TO DETERMINE THE REPRESENTATION OF.

The [CAB's] decision is incorrect because it ends a trial and sends the documents to the archive concerning a controversy the object of which is to determine the representation of a [CBA]. This is based on the fact that, in a previous trial, a CAB recognized such right in favor of the defendant union given that the decision about representation can not be made until all the procedural steps provided in the [FLL] are concluded, in order to protect the constitutional hearing and legality guarantees established in the Constitutional articles 14 and 16.³⁷

E. The March 12, 1999, CAB Decision

In the previous amparo it appears that the court sent the case action back to the CAB to review the standing issue. This CAB Hearing was scheduled for February 22, 1999. At this Hearing, TAESA and the TAESA's Union submitted an Incidente de Acumulación (Accumulation Motion) in connection with a second lawsuit filed by the STIASCRM Union. Although a copy of this action was not available at the time that this memorandum was prepared, this lawsuit appears to be very similar to the lawsuit filed by the Flight Attendants Union, especially with respect to the management and representation of the CBA. On March 12, 1999, CAB granted the Accumulation Motion in accordance with article 766, sections III and IV of the FLL. These articles provide the following:

Art. 766. In an on-going labor proceedings before the [CAB], an accumulation action can be admitted by administrative initiative or upon party request, in the following cases:

(iii) When actions are filed by several plaintiffs against one defendant, if the controversies have their bases in the same facts derived from the labor relationship; and

(iv) In all cases that, because of their own nature, the compensation claimed or the facts that motivated them may cause contradictory resolutions.³⁸

The CAB granted the Accumulation Motion on the basis that the alleged issues (identidad laboral) were identical. Here, both unions (the Flight Attendants Union and the STIASCRM Union) sued TAESA and the TAESA Union for the administration and representation of the CBA. Therefore, the authorization to join the actions is appropriate because the two lawsuits are based on the same facts and labor relationship.

An Accumulation Motion is usually granted because joinder of claims provides greater certainty to the parties, uniform treatment of decisions, and better utilization of judicial resources.³⁹ Finally, an Accumulation Motion may be granted not only upon request of the parties, but also by administrative initiative (de oficio) when considered appropriate by the authorities.⁴⁰

The attorney for the Flight Attendants Union, Mr. Mendoza, considers that the action joining these two lawsuits violated the union's process rights based on articles 766, sections I⁴¹ and II⁴² of the FLL. These sections, however, were not the basis for the Accumulation Motion in the representation and administration of the two lawsuits. Instead, article 766, sections III and IV apply to the present case and were considered by a Mexican court in the following case:

ACCUMULATION, EFFECTS OF THE, IN THE LABOR TRIALS. When separate lawsuits are filed by several plaintiffs against the same defendant, and when the controversy is based on the same issue within a labor relation, as established in article 766, section III, of the [FLL], the only effect of the accumulation is that the accumulated conflicts are resolved by one judgment. The accumulation in such case avoids contradictory outcomes. This does not mean that the exceptions/defenses used and the evidence provided in one controversy should be considered in the other. (Emphasis added.)⁴³

Mr. Mendoza also cited the Principio de Congruencia (Principle of Congruity) to support his position. However, there is no direct mention of this principle in the NAALC and it is unclear how it would be applied in the present circumstances. It is quite likely that the STIASCRM Union's simultaneous action was maneuver. However, the arguments against joining of the lawsuits lack merit.

F. The June 18, 1999, Amparo

In response to the CAB decision to join the two lawsuits, the Flight Attendants Union filed an amparo action on April 5, 1999, before the First District Court on Labor Matters of the First Circuit Court of Appeals. On June 18, 1999. the court dismissed the amparo action based on article 766 sections (III) and (IV).

G. The March 12, 1999, CAB Decision (re-count evidence)

After the decision in favor of the accumulation, the court sent the lawsuits back to the CAB for a presentation of evidence and decision on the substantive and procedural issues. As discussed above, the Flight Attendants Union requested a re-count procedure to take place. In its March 12, 1999, CAB Decision, as part of gathering evidence, the CAB authorized the re-count procedure to take place. The terms of the re-count, as ordered by the CAB, provided that all TAESA's employees wishing to vote were allowed to do so. This order required the use of payroll and social security lists, among other documents, to identify the TAESA employees authorized to vote in the re-count.

The Flight Attendants Union opposed the terms of the re-count. According to the Union, the re-count should not have allowed all TAESA employees to vote. Instead, the Flight Attendants Union claimed that only the flight attendants should have been allowed to participate in the re-count. This claim is not persuasive considering that the lawsuit seeks the administration and representation of a CBA that governs the labor relations of all TAESA land and air personnel. This analysis is based on the following considerations.

The most persuasive evidence in a procedure seeking the administration and representation of a CBA is the re-count evidence. Article 895, section III; and article 931 of the FLL provides that:

Art. 895. The [Hearing] will be carried out according to the following rules.

III. If the re-count of the workers is offered [raised by the plaintiff], the re-count will observe the rules established in article 931 of this Law; and,

Art. 931. If the re-count of the workers is offered as evidence, the following rules shall be followed:

I. The [CAB] shall name the place, day and time of the recount;

II. Only the workers of the company that voluntarily appear to vote will have the right to do so;

III. Employees who were terminated after the date in which the lawsuit was filed will be considered workers of the company with a right to vote;

IV. The vote of the non-unionized workers will not be valid towards the re-count, nor will the vote of employees that were hired after the date in which a call for a strike took place; and

IV. Any objections to the employees that vote in the re-count must take place at the moment in which the vote took place, in which case the CAB will schedule a Hearing for presentation of evidence. (Emphasis added.)

The recount procedure, which took place on March 22, 1999, followed the procedures described above. The following table provides the results of the re-count vote as divided among the three unions regarding the representation and administration of the current TAESA CBA:

As indicated above, Mr. Mendoza claims that the March 12, 1999 CAB Decision violates articles 388 section (III); 389; 892; 895 Section (III); 899; and 931 of the FLL because the CAB permitted the re-count to take place with the all TAESA's employees participating, instead of permitting a re-count which allowed only TAESA's flight attendants to vote. The fact the re-count permitted all employees to vote, according to the Flight Attendants Union, denied the Union's right to have the administration and representation of the CBA with respect to the flight attendants. Supporting the need for a general re-count is article 388, section III of the FLL:

Art. 388. If there are several unions within the same enterprise, the following rules shall be observed:

III. If there are trade unions and company or industrial unions, the former may enter into a [CBA] for their trades, provided that their membership is greater than the number of workers of the same trade who belong to the company or industrial union. (Emphasis added.)

Article 388 of the FLL is applicable when, within a single company, several unions request the execution of a CBA. A trade union, such as the Flight Attendants Union that represents only the professional interest of one segment of the employees, cannot represent all the employees. This result been affirmed by the Mexican courts in the following case:

RE-COUNT. VALUATION OF THE EVIDENCE OF, TO GRANT THE REPRESENTATION AND ADMINISTRATION OF THE [CBA].

From an interpretation of article 931 and 388 of the FLL, as well as the precedent from the Fourth Chamber entitled RE-COUNT. VALUATION OF THE EVIDENCE OF, TO GRANT THE REPRESENTATION AND ADMINISTRATION OF THE [CBA], that establishes that in order to provide the representation and administration of a [CBA] to a union, as among two unions contesting the representation and administration of a [CBA], it is not only necessary to obtain the majority of votes of the employees present to vote in the re-count, but it is also necessary to prove that such majority is not only the majority of those present to vote but is also the majority of all employees of the company (present or absent in the re-count vote). This is the only method to prove that the union counts with the majority interest..." (Emphasis added.)⁴⁵

Art. 892. The rules contained herein govern the procedures to resolve conflicts arising out of the application of articles 5, section III; 28, section III; 151; 153, section X; 158; 162; 204, section IX; 209, section V; 210; 236, sections II and III; 389; 418; 424, section IV; 427 sections I, II and VI; 434, sections I, III and V; 439; 503 and 505 of this Law and the conflicts (legal actions) the objective of which is to collect any compensation that does not exceed the amount of three months of salary.

Art. 895. The [Hearing] will be carried out according to the following rules.

III. If the re-count of the workers is offered [raised by the plaintiff], the re-count will observe the rules established in article 931 of this Law; and,

Art. 899. Special proceedings shall observe the rules established in Chapters XII (evidences) and XVII (the ordinary proceeding) of this Title in their relevant parts.

Art. 904. The plaintiff's claim, as the case may be, shall include the following:

III. A report made by an expert regarding the economic situation of the company or establishment.

IV. Any evidence deemed convenient to prove the plaintiff's case. (Emphasis added.)

These articles require that the lawsuit follow the special procedures established therein. The CAB decision was consistent with the provisions in these articles because:

1. Article 892 and article 389 of the FLL provide that the CAB is the competent authority to resolve labor disputes of this kind;

2. Article 893 of the FLL authorizes the CAB to consider this lawsuit and the CAB notified the parties of the Hearing;

3. Article 894 provides that notice be given to the defendants (TAESA and TAESA Union) warning them of the consequences if they do not appear at the Hearing. TAESA and the TAESA Union appeared at the Hearing;

4. Article 895 sets forth the framework for the conduct of the Hearing in compliance with the due process guarantees provided in sections I and II of article 895. During the Hearing, the TAESA Union and TAESA filed the Lack of Legal Standing Motion of the Flight Attendants Union;

5. Article 899 sets forth the procedures to be followed throughout this process by the CAB; and

6. Articles 782 and 784 establish the procedure for identifying employees during the re-count. The CAB, in the present case followed these rules. As part of this identification process, the CAB requested the following: 1) payroll list; and/or 2) attendance list; and/or 3) IMSS enrollment; and/or 4) any other document that would identify TAESA's employees.

In addition to the above, the re-count was carried out in a manner consistent with the published decisions of the Mexican courts, which have held that the re-count cannot be limited to only one sector of employees when a union requests the administration and representation of a CBA. This rule is based on need to guarantee that all employee sectors are represented (e.g. other air and land personnel). If these other employees were not permitted to vote, the vote would violate the rights of these individuals to elect their representatives under articles 358 and 359 of the FLL. This position is by the decisions in the following cases:

RE-COUNT- PURPOSE AND REQUIREMENTS OF.

The purpose of the re-count procedure is to identify which of the competing unions represents the majority of a certain company's employees and, therefore, which union should be entitled to the representation and administration of the [CBA].... (Emphasis added.)46

[CBA], WHICH WORKERS HAVE TO GRANT THE MAJORITY TO THE UNION THAT CLAIMS ITS REPRESENTATION.

If one union claims that another union which executed a collective bargaining agreement has lost the right to represent and administer such agreement and that such agreement should be granted in its favor, the re-count has to be focused on those workers that were working when the conflict was settled or when the suit was filed. (Emphasis added).⁴⁷

RE-COUNT. NECESSARY PROVING MEAN TO EVIDENCE THE ADMINISTRATION AND RREPRESENTATION OVER THE [CBA].

When one union claims that it rather than another union should be recognized as having the representation and administration of the majority of the workers, it is necessary to file a re-count in order to prove which union has the majority of the workers and, therefore, which union is going to have the representation and administration of the collective bargaining agreement. (Emphais added).⁴⁸

The opinions in these cases undermine the argument of the Flight Attendants Union given that they provide that a re-count must be based on a majority of the employees, not only the employees of one sector or profession.

As of the date of this memorandum, the CAB has sent a letter to IMSS requesting information related to the TAESA's employees who voted and those that did not during the re-count evidence procedure. This lawsuit will not be resolved until such information is sent to the CAB.