Legal Memorandum on Submission 9901 (TAESA)
The National Law Center for Inter-American Free Trade (NCLIFT)
TABLE OF CONTENTS
VI. End Notes
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:
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.
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:
From the TAESA Union, the Flight Attendants Union requested the following:
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:
On March 22, 1999, a re-count vote was taken regarding the representation and administration of the CBA resulting in the following:
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.
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
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.
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:
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:
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:
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.
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:
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.
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:
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:
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.
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:
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:
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.
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).
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:
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:
RESULTS OF THE RE-COUNT EVIDENCE TAKEN BY CAB44
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:
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:
These articles require that the lawsuit follow the special procedures established therein. The CAB decision was consistent with the provisions in these articles because:
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:
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.
The lawsuit filed by the Flight Attendants Union has a rather complex procedural history having been reviewed by the CAB and the courts of appeal. During this process, certain procedural rights of the Flight Attendants Union were violated by the CAB and certain claims were dismissed on mere technicalities. However, these procedural violations were corrected in conformity with the Mexican procedural law through the actions of the CAB, which followed the orders of the Mexican courts of appeal.
The CAB decisions that have been issued to date involve procedural issues such as standing and the joinder of lawsuits. Several of these decisions were in favor of the Flight Attendants Union while others in favor of TAESA and the TAESA Union. The procedural remedies have been exhausted and issue that remains is whether the Flight Attendants Union has the necessary support within TAESA's employee's base to claim the right to manage and represent the current CBA. The lawsuit should proceed once the evidence from the IMSS is submitted.
Mexican case law clearly establishes the obligation of conducting a re-count procedure that involves all employees, not merely a single employee sector. These decisions provide that, in order to obtain the representation and administration of a CBA, a plaintiff must demonstrate that it has the support of the majority of the workers of a company: meaning 50 percent plus one. A tied vote may result in favor of the current union. The likelihood of the Flight Attendants Union obtaining a majority vote of the TAESA employees is not strong given the percentage of votes in favor of the TAESA Union during the re-count.
The Flight Attendants Union should have chosen a different legal process to create a trade union within TAESA that would represent the flight attendants exclusively. Under Mexican law there are procedures that must be followed in order to form a trade union. Unions are created for the defense of the common interests of their members. Consequently, if the majority of the members of a union decide to incorporate or join another union, it is possible to do so based on the application of the Freedom of Association Principle.
Finally, the due process rights of the Flight Attendants Union have not been violated by the Mexican judicial system. Mexican labor law and Mexican procedural law have been appropriately applied in this lawsuit.
1. Asociación Sindical de Sobrecargos de Aviación de México (Flight Attendants Union) v. 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) [hereinafter, lawsuit], July 8, 1997.
7. Employees and employers have the right to form unions without previous authorization. Id., arts. 356-357. See also Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the United States of Mexico hereinafter Const.), D.O. February 5, 1917, art. 123, Section A (XVI). Unions may be incorporated with at least twenty workers in active service or with at least three employers. See FLL, art. 364.
8. See FLL, art. 365. Once the Ministry of Labor has registered a union, it shall send a copy of the resolution to the Federal CAB. Once the union has been recorded, the registration is valid before all authorities. Id.,. arts. 367-368.
11. Id., 387. In addition, FLL, art. 450 specifies: The objectives of the strike shall be: (i) to obtain a balance between the factors of production, harmonizing the rights of labor with the rights of capital; (ii) to obtain from the employers or employers the signing of a collective bargaining agreement and to demand its revision upon expiration, according to the provisions of Title Seven, Chapter III of the FLL; (iii) to obtain from the employers the signing of a law-contract and to demand its revision upon expiration, according to the provisions of Title Seven, Chapter IV of the FLL; (iv) to demand compliance with the collective bargaining agreement in the enterprises or establishments in which it had been violated; (v) to demand compliance with the legal provisions on profit sharing; (vi) to support a strike, the objective of which is one of those listed in the preceding paragraphs; and (vii) to demand the revision of the contractual salaries to which articles 399 bis and 419 bis refer.
18. Id., art. 360 provides that an employees' union may be (i) trade unions, those formed by employees of the same profession, trade or specialty; (ii) company unions, those formed by employees who render their services in the same company; (iii) industrial unions, those formed by employees who render their services in two or more companies in the same industrial activity; (iv) national industry-wide unions, those formed by workers who render their services in one or several companies in the same industrial activity, located in two or more States; and (v) multi-craft unions, those formed by workers of different crafts. Multi-craft unions may only be formed when the number of workers of the same craft in the particular municipality is less than twenty. Id., art. 360.
20. FLL, art. 396. In addition, FLL art. 184 dictates that working conditions contained in the CBA, which covers the enterprise or the establishment, shall extend to non-unionized workers, unless a provision to the contrary appears in the same CBA. Id., art. 184.
22. Fourth Courtroom of the Supreme Court of Justice, Amparo Lawsuit 3910/77 Union of Workers of the Swimming and Gymnastics Teaching of Mexico City. June 28, 1978, (decided unanimously). Instructing Magistrate: María Cristina Salmorán de Tamayo. Weekly Judicial Journal of the Federation: Seventh Period. Page 91.
30. See also FLL art.685. It is important to note that article 685 exclusively relates to the employees when they sue their employers and does not contain all the petitions and legal grounds in accordance with the FLL and with all of the facts. In this case, there is not a weak party to the lawsuit. The parties are the Flight Attendants Union, TAESA and the TAESA Union. Thus, the lawsuit involves two unions fighting for the administration and representation of an existing CBA. Accordingly, it is difficult to attempt to subject the process to a "weaker party" proceeding.
36. Amparo lawsuit 698/94, National Steel and Construction Employees, Similar and Related, of the Mexican Republic, December 7, 1994, (decided unanimously). Instructing Magistrate: Juan Miguel García Salazar
37. Third Courtroom Specialized in Labor Matters of the First Circuit Amparo Lawsuit 7003/89, National Independent Union of Workers of the Production, Transformation and Assembling Metallics and Similars. October 25, 1998, (decided unanimously). Instructing Magistrate: F. Javier Mijangos Navarro. Secretary: Héctor Landa Razo. Source: Weekly Judicial Journal of the Federation. Eighth Period.
43. Seventh Courtroom Specialized in Labor Matters of the First Circuit. Amparo Lawsuit 3347/91, National Union of Workers and Employees of the Beer, Gas Water, Canned Food, its Distribution and Similars. November 12, 1991, (decided unanimously). Instructing Magistrate: Martín Borrego Martínez.. Secretary: Noé Herrera Perea. Source: Weekly Judicial Journal of the Federation. Period: Eighth Period. Amparo Lawsuit 9467/90, Maurilio Salinas Franco. April 23, 1991, (decided unanimously). Instructing Magistrate: María Yolanda Múgica García. Secretary: Antonio Hernández Meza. Weekly Judicial Journal of the Federation, Eighth Period.
44. There was a mistake in result line 12 above since the TAESA Union was credited with 68 votes instead of 78. This mistake was corrected when the general re-count was carried out establishing that the TAESA Union obtained 1442 votes instead of 1432. The adjusted re-count was not appealed by the Flight Attendants Union. Consequently, the 1442 votes in favor of the TAESA Union remains valid.
45. Jurisprudence thesis 24/93 approved by the Fourth Courtroom on May 17, 1993 by five votes of the Magistrates: Carlos García Vázquez, Juan Díaz Romero, Ignacio Magaña Cárdenas, Felipe López Contreras and José Antonio Llanos Duarte.
46. First Court Specialized In Labor Subjects Of The First Circuit, Amparo Lawsuit 3841/89, League of Workers and Employees of the Industry of Graphical Arts, Printings, Lithography and Similars of Mexico City, June 29, 1989, (decided unanimously). Instructing Magistrate: Horacio Cardoso Ugarte. Secretary: Teresa Sánchez Medellín. Weekly Judicial Journal of the Federation, Eighth Period. Page 641.
47. Supreme Court of Justice, Amparo Lawsuit in labor matter 456/49, Industrial Union on Wood and Similar Sectors of Mexico City, October 21, 1949 (decided unanimously). Note: the publication does not mention the name of the Instructing Magistrate. Weekly Judicial Journal of the Federation, Seventh Period. Page 639.
48. Amparo Lawsuit 11065/96, Labor Union "November 18" of Workers and Employees of Commerce in General, Private offices, Sale Agents, Commercial offices, and Similar Activities in Mexico City, November 28 1996 (decided unanimously). Instructing Magistrate: Gemma de la Llata Valenzuela. Secretary: José Francisco Cilia López. Fifth Circuit Court specialized in labor matters. Weekly Judicial Journal of the Federation, Ninth Period. Page 531.