1. FREEDOM OF ASSOCIATION AND PROTECTION OF THE RIGHT TO ORGANIZE IN THE U.S. AND MEXICO

2. THE NATIONAL LABOR RELATIONS BOARD - UNFAIR LABOR PRACTICE PROCEEDINGS - AN OVERVIEW

3. DISCRIMINATION AGAINST EMPLOYEES BECAUSE OF THE EXERCISE OF THE RIGHT TO ORGANIZE THE LIVING LAW IN THE U.S.

4. A COMPARISON OF THE MEXICAN CONCILIATION AND ARBITRATION BOARDS' (CABs') PROCESSES AND THOSE OF THE NATIONAL LABOR RELATIONS BOARD (NLRB)

5. THE SPRINT CASE - THE MEXICAN NATIONAL ADMINISTRATIVE OFFICE VS THE NATIONAL LABOR RELATIONS BOARD

1. Jerry Morales is a partner with the law firm of Snell & Wilmer, L.L.P. where he practices in the labor/employment, employee benefits and international areas. He may be reached at 602-382-6362, 800-322-0430, or through Lexic Counsel Connect, jmorales@counsel.com

A. Employees' Basic Right to Associate-the Mexican Constitution and the National Labor Relations Act

In Mexico, the Constitution itself (Article 123), expressly recognizes the right of workers to associate. Titles VII and VIII of the Federal Labor Law (FLL) regulate said constitutional right. Sections XVI and XIX of Paragraph A of Article 123, constitute the very basis of Mexican collective labor law:

• Section XVI recognizes the right to associate for both workers and employers.

• Section XVII recognizes the right of workers to strike and of employers to engage in work stoppages.

• Section XVIII states that the objective of a strike is to establish a balance between the factors of production, harmonizing the rights of workers with those of capital owners.

• Section XVIII also provides that, in the case of public services, the workers must advise the Conciliation and Arbitration Board ten days prior to the intended date of a strike.

• Section XIX authorizes employers to stop work-and lay off workers temporarily-when an excess of production makes it necessary to reduce output to maintain prices at a profitable level. Prior authorization of the Conciliation and Arbitration Board is required.

In the United States, workers do not have a constitutional right to associate. The National Labor Relations Act, 29 U.S.C. Section 151 et seq. (NLRA or the Act), is the statute that provides the legal framework through which the right of employees to associate and organize is protected.⁽³⁾ The declaration of policy in the NLRA states:

"It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free-flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protections."

Indeed, the most basic policy under the NLRA is the employees' free choice to unionize (associate) or reject unionization, without fear of reprisal or economic penalty. Section 7 of the NLRA states:

"Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection and shall also have the right to refrain from any or all such activities. . . . "

Thus, the principal rights protected by Section 7 are:

• Forming or attempting to form a union among the employees of an employer.

• Joining a union whether the union is recognized by the employer or not.

• Assisting a union to organize the employees of an employer.

• Acting in "concert" with other employees with respect to terms and conditions of employment.

• Refraining from any concerted activity and from activity on behalf or in support of a union.

Section 8 of the NLRA declares it to be an unfair labor practice "to interfere with restrain, or coerce employees in the exercise of their rights guaranteed in Section 7."

B. The Unions' Representational Rights-U.S. Section 9 of the NLRA

In the United States, labor unions need not be "registered" with or authorized by the federal or state governments in order to legally require employers to recognize them as the exclusive bargaining representative of the employer's employees. Rather, a union that seeks to require an employer to recognize and bargain with it as the "exclusive" bargaining representative of a group or unit of employees, must obtain certification as the bargaining representative of said unit from the National Labor Relations Board (NLRB), a federal agency established pursuant to Section 3(a) of the NLRA.

In order to obtain such certification from the NLRB, a union must file a petition for a secret ballot election among the employees in the group or unit (NLRA Section 9) and obtain a simple majority of the employees' votes in the election. Generally, in order for the NLRB to process an election petition, it must be supported by at least 30% of the group which the union seeks to represent. E.g., S.H. Kress Co., 137 NLRB 1244, 1248 (1962). Normally, such showing of support is submitted by unions to the NLRB in the form of individual authorization cards. E.g., Potomac Electric Co., 111 NLRB 553, 554, 555 (1955).

Once certified, after receiving a majority of the votes in an election conducted by the NLRB, the union has the right to demand that the employer engage in good faith collective bargaining. An employer's failure to recognize and bargain with a union that has been certified by the NLRB as the bargaining representative of the employer's employees, constitutes an unfair labor practice, that is , a violation of Section 8 of the NLRA, and upon a duly filed charge alleging such violation, the General Counsel of the NLRB must prosecute such alleged violation.

C. The Unions' Representational Rights; Mexico-Article 387 of the Federal Labor Law

The process by which labor unions obtain representative status and the legal rights which such status provides in the United States are in sharp contrast with their counterparts in Mexico.

In Mexico, Article 387 of the Federal Labor Law provides:

The employer who hires workers who belong to a union shall be required, at the request of the union, to conclude a collective bargaining agreement with such union. If the employer refuses to sign the agreement, the workers may exercise the right to strike provided for in Article 450.

The legislative emphasis is not, as in the U.S., on the election of the union by a majority of the employees as its bargaining representative, but rather on the legal existence of the bargaining agent itself. The requirements for such legal existence are, therefore, paramount.

In order for a union to have the legal personality which would enable it to request an employer "to conclude a collective bargaining agreement," it must be "registered" with the Ministry of Labor, in the case of unions whose competence is national or with the appropriate conciliation and arbitration board, in the case of unions whose competence is strictly local. The requirements for "registration" imposed by Mexico's Federal Labor Law are:

1. the union must be "an association of workers. . . ";

2. it must be constituted "for the study, advancement, and defense" of their interests;

3. it "shall be formed by not less than 20 workers in active employment . . ."; and

4. the following documents should be filed with the Labor and Social Welfare, Secretariat of the Ministry of Labor if its competence is throughout the federal territory, or with a conciliation and arbitration board, if it has only local competence:

1. a certified copy of the minutes of the organizational assembly;

2. a list of its members, their names and addresses and the names and addresses of the employer enterprises or establishments in which they are employed;

3. a certified copy of its by-laws, and

4. certified copies of the minutes of the meeting at which its managing board was elected.

(Article 366, 364, 365 and 356 of the Federal Labor Law.)

In sum, in the U.S., labor unions do not require government authorization or "registration" as a prerequisite to file an election petition and, thereafter, if elected by a simple majority of the employees in an appropriate group or unit, to demand recognition and bargaining from employers. By contrast, in Mexico, the union must first show that it has received "registration" from the Ministry of Labor, in order to require an employer "to conclude a collective bargaining agreement" and exercise the right to strike.

D. Confidentiality of the Identity of the Union Supporters

A very significant and practical difference between the procedures in the two countries with respect to the employees' right to organize, is with respect to the confidentiality of the identity of the employees supporting the union. Thus, while in the United States, it is a basic principle that the NLRB would not disclose to the employer the identities of the employees who have provided individual authorization cards requesting a union election, in Mexico the names of the employees included in the list of members, filed with the Ministry of Labor may, under some circumstances at least, be disclosed to their employers.

E. The Right to Work

In Mexico, the law permits collective agreements providing that only union members will be hired. While Article 358 of the FLL states that no one may be forced to join or not join a union, Article 395 permits the inclusion of so called "exclusion clauses" (closed shops) in collective bargaining agreements.⁽⁴⁾

In the U.S., state law controls. Thus, Section 8(a)(3) of the NLRA permits, under certain circumstances, agreements which require union membership as a condition of employment, but only in states or territories which do not prohibit such agreements. NLRA Section 14(b). Twenty of the 50 States have statutes or constitutional provisions which prohibit, in varying degrees, that employees be required to become or remain union members in order to obtain or retain employment.

1. Adapted from a chapter written by the author in the Report of the National Law Center for Inter-American Free Trade to the U.S. Department of Labor.

2. Jerry Morales is a partner with the law firm of Snell & Wilmer L.L.P. where he practices in the labor/employment, employee benefits and international areas. He may be reached at 602-382-6362, 800-322-0430, or through Lexis Council Connect, jmorales@counsel.com

3. One of the "guiding principles" which the Parties to the North American Agreement on Labor Cooperation (NAALC), committed to promote, subject to each Party's domestic law, is the freedom of association and protection of the right to organize. This guiding principle is stated in Annex I to the NAALC as follows: "The right of workers exercised freely and without impediment to establish and join organizations of their own choosing to further and defend their interests."

4. Workers who were employed prior to the signing of a CBA with an exclusive or closed shop clause, may not be required to join the union as a condition of continued employment.

A. Establishment and Jurisdiction of the NLRB and of its General Counsel

In order to interpret and enforce the NLRA, the statute itself established the National Labor Relations Board (NLRB or Board), as an independent federal agency consisting of five members appointed by the President with the approval of the Senate for five-year staggered terms. The NLRA also established the Office of General Counsel of the NLRB, whose basic function is to investigate charges alleging violations of the Act and on the basis of such investigations, decide whether to issue and prosecute complaints alleging violations of the Act (NLRA Section 3). The NLRB has exclusive jurisdiction with respect to allegations of violations of Section 8 (unfair labor practices). In order to carry out its mission of administering and enforcing the NLRA, the NLRB combines the functions of investigation, prosecution, and adjudication.

B. Statute of Limitations

The limitations period provided in the NLRA is six months. "Provided that no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge. . ." NLRA Section 10(b).

C. Investigations and Prosecutions

Sections 10 and 11 of the NLRA describe the powers of the Board. Pursuant to those sections, and to the Administrative Procedures Act, 5 U.S.C. Section 552 et seq. the NLRB has promulgated and adopted Rules, Regulations and Statements of Procedures which supplement those sections of the Act and which describe, in detail, the processes and procedures which are to be followed in the investigation of charges alleging violations of the Act (unfair labor practice charges), and in the prosecution of complaints issues by the General Counsel based on said investigations.

The investigations are carried out by the Board's "field attorneys" and "field examiners," officed in the Board's 34 Regional Offices which are located throughout the United States. The decisions whether or not to issue complaints are normally made, on behalf of the General Counsel, by the highest officer in the Regional Office (Regional Director), with responsibility for the investigation and prosecution of unfair labor practices in the geographic area wherein the ULPs were allegedly committed. If the Regional Director refuses to issue a complaint, that decision may be appealed to the General Counsel's office in Washington, D.C.

D. The ULP Hearing

Once a complaint is issued, a public hearing (ULP hearing), is conducted before an Administrative Law Judge (ALJ), who, on behalf of the Board, has the responsibilities to conduct the hearing and submission of the parties' briefs, issue a decision which includes a complete statement of the case, findings of fact, (including credibility resolutions), conclusions of law, and recommended order.

At the ULP hearing, the case is prosecuted by an attorney for the Regional Office, acting on behalf of the General Counsel. The party(ies) who filed the charge(s) alleging that violations of the Act occurred (charging party(ies)), and the respondent(s) may be represented by counsel. All parties are entitled to call, examine and cross-examine witnesses and offer other evidence. A verbatim transcript is taken of the proceeding and all parties may present oral arguments and/or submit written briefs to the ALJ. Section 10(b) of the Act requires that unfair labor practice hearings shall, "so far as practicable, be conducted in accordance with the rules of evidence applicable in the district courts."

E. The Appeal to the NLRB and to the Courts

Any party may file exceptions to the ALJ's decision with the Board, which should be supported by briefs. Answering briefs and cross-exceptions are also permitted. The Board's decision is based on the entire record at the hearing, the ALJ's decision, the exceptions thereto, and supporting briefs. In exceptional cases, the Board will grant permission for oral argument. NLRB decisions are published and are subject to review by the United States judicial system through appeals to the United States Circuit Courts of Appeals and from decisions of those courts to the United States Supreme Court. NLRA Section 10(f).

F. The Discretion of the NLRB

In connection with the judicial review of NLRB decisions, the general principle is that the courts will not disturb those decisions and orders unless, reviewing the record as a whole, it appears that the Board's factual findings are not supported by substantial evidence or that the Board acted arbitrarily or otherwise erred in applying established law to the facts at issue. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) Synergy Gas Corp v. NLRB, ___ F.2d ___, 45 LRRM 2855 (D.C. Cir. 1994); United Food and Commercial Workers v. NLRB, 880 F.2d 1422, 1429 (D.C. Cir. 1989). The courts will not merely rubber stamp NLRB decisions and must take into account whatever in the record fairly detracts from the weight of the evidence cited by the Board to support its conclusions. Gold Coast Restaurant v. NLRB, 995 F. 2d 257, 263 (D.C. Cir. 1993).

1. Adapted from a chapter written by the author in the Report of the National Law Center for Inter-American Free Trade to the U.S. Department of Labor.

2. Jerry Morales is a partner with the law firm of Snell & Wilmer L.L.P. where he practices in the labor/employment, employee benefits and international areas. He may be reached at 602-382-6362, 800-322-0430, or through Lexis Counsel Connect, jmorales@counsel.com

A. The Legal Principles

The NLRB interprets and enforces the provisions of the NLRA using a case by case approach. Principles of law developed in the context of real cases are then applied as authoritative in future cases where the facts are substantially similar. Those established legal principles are also applied by the NLRB General Counsel in deciding whether or not to issue complaints, when the investigation of the allegations is completed. This approach has provided a great deal of flexibility to the application of the principles of the NLRA in changing circumstances.

Discrimination by an employer against employees because of the exercise of the right to organize (association), is the most common type of dispute heard by the Board. The legal principles applicable to this type of dispute are well established. Section 8(a)(3) of the Act provides in pert. Part, that it is unlawful for an employer "by discrimination in regard to hire or tenure of employment to encourage or discourage membership in any labor organization."

B. The Legitimate Business Reason Defense

Where the employer's conduct is motivated by legitimate and substantial business reasons and not be a desire to penalize or reward employees for union activity, or the lack of it, the conduct is not unlawful. NLRB v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937). Indeed, the NLRB is expressly prohibited by Section 10(c) of the NLRA from issuing orders of reinstatement or back-pay - the basic remedies which the Board is empowered to issue - where an employee has been "suspended or discharged for cause."

Thus, it is important to emphasize that under the NLRA, an employer may discharge an employee for bad cause or no cause and there is no violation of the Act, unless the employer's motive was to encourage or discourage union membership or to interfere with the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Under established principles, when the employer's conduct has only a "comparatively slight" adverse effect on employee rights and the employer comes forward with evidence of legitimate and substantial business reasons, the anti-union motivation must be proved in order to sustain a Section 8 (a)(3) violation. NLRB v. Great Dane Trailers, Inc., 388 U.S. 26 (1967).

In the United States, therefore, even if the employer's conduct is deemed unjustified or unfair, the "discriminatory conduct" does not violate the NLRA, unless the unlawful purpose is shown or can be implied as a matter of law. An employer does not violate the Act, merely by firing a union member; nor may an employee shield himself from all possibility of termination merely by becoming a union activist. Associated Press v. NLRB, 301 U.S. 103 (1937); Aurcon, Inc. v. NLRB, 931 F.2d 924, 928 (D.C. Cir. 1991), denied 112 S. Ct. 912 (1992); NLRB v. McGahey, 233 F.2d 406 (5th Cir. 1956); Airborne Freight Corp. v. NLRB, 728 F.2d 357 (6th Cir. 1984). Buddies Supermarkets, 223 NLRB 950, F.2d 39 (5th Cir. 1977).

C. The Mixed Motive Cases

As may be expected, in the majority of cases in this area, there is more than one motive or purpose for the employer's conduct, one of which is discriminatory. In these cases (mixed motive cases), the NLRB's General Counsel bears the initial burden of demonstrating that an anti-union animus contributed to the employer's decision to discharge an employee. However, even if the General Counsel has established a prima facie case of anti-union animus, the employer may avoid liability by demonstrating, by a preponderance of the evidence, that the worker would have been fired even if he had not been involved with a union. Wright Line, Division of Wright Line, Inc., 251 NLRB 1083 (1980), enforced as modified 662 F.2d 899 (1st Cir. 1981), cert. Denied 455 U.S. 989 (1982); Herman Brothers, Inc., 252 NLRB 848 (1980); Valley Cabinet and Manufacturing, Inc., 253 NLRB 98 (1980). This test was approved by the Supreme Court in NLRB V. Transportation Management Corp., 462 U.S. 393 (1983); for recent cases see also Synergy Gas Corp. v. NLRB, _____ F.2d _____, 145 LLRM 2855 (D.C. Cir. 1994) St. Luke's Hospital 312 NLRB 425 (1993); Magnet Coal, 311 NLRB 1342 (1993); OHI Services, 313 NLRB No. 59 (1993).

1. Adapted from a chapter written by the author in the Report of the National Law Center for Inter-American Free Trade to the U.S. Department of Labor.

2. Jerry Morales is a partner with the law firm of Snell & Wilmer L.L.P. where he practices in the labor/employment, employee benefits and international areas. He may be reached at 602-382-6362, 800-322-0430, or through Lexis Counsel Connect, jmorales@counsel.com

A. Jurisdiction

One of the most salient differences between the Mexican CABs and the NLRB is with respect to jurisdiction.

In Mexico, the jurisdictional authority with respect to the protection of workers' rights is, in essence, divided between state and federal CABs on the basis of the type of industry or enterprise involved. In the United States the jurisdiction of the NLRB in labor disputes, in essence, applies to all activities that have a "close and substantial relation to interstate commerce" and is both national and exclusive with respect to the protection of the rights granted to workers by the NLRA." Subject to the rule of the de minimis, the NLRB jurisdiction has been construed broadly to extend to all such conduct as may be constitutionally regulated under the commerce clause. NLRB v. Fairblatt, 306 U.S. 601 (1939).⁽³⁾

It is clear that the substantive jurisdiction of a CABs is broader than that of the NLRB, for unlike the CABs, the NLRB does not have jurisdiction in matters such as the approval of collective bargaining agreements, nor does it have jurisdiction in disputes concerning minimum wages, registration of unions, etc.⁽⁴⁾

With respect to geographical jurisdiction, while in the U.S., the NLRB has jurisdiction over the entire nation with respect to claims involving workers' rights guaranteed by the NLRA, in Mexico each state CAB's jurisdiction applies only to disputes involving industries and enterprises specified in the law.

B. Period of Limitations

In order for the General Counsel of the NLRB to issue a formal complaint alleging that rights guaranteed to workers by the NLRA have been violated, the charge alleging such violations must have been filed and served upon the respondent within six months of the time that the party asserting that the violations occurred knew or should have known the same. NLRA Section 10(b); Dunn & Bradstreet Software Services, Inc., 317 NLRB No. 13 (1995); Marina Mail, 271 NLRB 397 (1984). In Mexico, the period of limitations for the filing of complaints with CABs alleging violation of employees' rights is one year.

C. Membership in the Boards

Only one member of the states' CABs is appointed by the state governor. Similarly, only one member of the federal CAB is appointed by the President of Mexico. The other members of the CABs are elected by labor and management sectors. This procedure contrasts sharply with the statutory scheme in the U.S., whereby all five NLRB members are appointed by the President with the advice and consent of the Senate.

Another distinction is that while in Mexico, the governmental appointees serve at the pleasure of the President of the Republic (federal CAB), or the state governor, (in the case the states' CABs,) and the rest of the CAB members are elected by their respective sectors (labor or management) for six-year terms, in the U.S., the members of the NLRB are appointed for five-year terms.

D. Necessity of Complaint or Charge to Invoke Process

As is, in essence, the case with CABs processes in Mexico, in the U.S. the NLRB's processes may not be invoked, except by the filing of a charge or complaint. Unlike CABs, that may act ex officio in exceptional cases involving a significant number of jobs, the NLRB does not have authority to act ex officio.

E. Scope of Agents Authority

Unlike the CABs, the NLRB's orders are not self-enforcing and, therefore, unlike the CABs' actuaries, field agents of the NLRB do not have authority or responsibility for the enforcement of the Board's decisions. If a party fails to comply with an NLRB decision, the Board must seek judicial enforcement or the party affected by the decision may appeal to the Federal Court of Appeals, seeking modification or reversal of the Board order.

F. Procedures Applicable to Settlement and Conciliation

The NLRA does not provide formal conciliation procedures, as those provided for in Articles 876, Section I of the FLL for cases involving alleged violations of employees' rights. In general, however, the NLRB, through its agents, seeks settlement of all meritorious cases before and after a formal complaint is issued. The procedure followed by the Board in seeking settlement is informal. It is only when those efforts fail that an unfair labor practice hearing is conducted.

G. Procedures Applicable to Hearings

The purposes of CABs' hearings, conducted pursuant to Article 878 et seq., of the FLL and the CABs internal regulations, and those of unfair labor practice hearings, conducted by the NLRB pursuant to Section 10 of the NLRA and its Rules and Regulations are essentially the same - to provide the parties the opportunity to present evidence with respect to the alleged facts and to argue the principles of law applicable to each case. Procedurally, however, there are basic similarities and distinctions between the two.

For example, the decisions of the CABs, like those of the NLRB are in writing. However, unlike CABs' hearings, unfair labor practice hearings conducted by the NLRB do not have a "pleadings phase," and unlike CABs' orders which are not published, practically all NLRB decisions are published.⁽⁵⁾ It is also noteworthy that as with CABs' hearings, parties in NLRB hearings are not required to be represented by counsel and that NLRB's ALJs perform the same function as the members of the CABs with respect to determining the admissibility of evidence.

H. Appeals from Boards' Decisions

It is interesting to note that, as is the case with appeals from NLRB decisions, appeals from decisions of federal or states CABs are filed with the federal judiciary. There are, however, significant differences in the process of appeal from decisions of the CABs and the NLRB. While in Mexico a party appealing a CAB decision must file the appeal with the CAB which, in turn, sends it to the Federal Courts of Appeals, in the U.S. Section 10(f) of the NLRA gives private parties the right to seek review of NLRB's decisions by filing appeals directly with the Federal Courts of Appeals. Of course, there is no law of Amparo in the United States and , therefore, U.S. courts do not "correct the deficiencies of the appellants brief" irrespective of the identity of the appellant.

1. Adapted from a chapter written by the author in the Report of the National Law Center for Inter-American Free Trade to the U.S. Department of Labor.

2. Jerry Morales is a partner with the law firm of Snell & Wilmer L.L.P. where he practices in the labor/employment, employee benefits and international areas. He may be reached at 602-382-6362, 800-322-0430, or through Lexis Counsel Connect, jmorales@counsel.com

3. Section 2(2) of the NLRA excludes from the NLRB's jurisdiction any person subject to the Railway Labor Act, the United States or any wholly owned government corporation or any federal reserve bank or any State or political subdivision thereof. That section also excludes from the NLRB jurisdiction labor organizations, except when acting as an employer. International organizations and wholly owned tribal enterprises operated on a reservation have also been held excluded from NLRB jurisdiction. Fort Apache Timber Company, 226 NLRB 503 (1976); Herbert Harvey, Inc., 171 NLRB 238 (1968).

4. Although the substantive jurisdiction of the CABs is broader than that of the NLRB, the CABs' jurisdiction does not encompass all areas of employment law. The Mexican Federal Labor Department, state governmental authorities, the National Employment and Training Agency, etc., deal with a variety of employment claims which fall outside the jurisdiction of the CABs. This is indeed similar to the legal scheme in the U.S. where agencies such as the U.S. Department of Labor (DOL), the Equal Employment Opportunity Commission (EEOC), the Office of Federal Contract Compliance Programs (OFCCP), and the states equal employment opportunity agencies, deal with a myriad of employment matters which fall outside the jurisdiction of the NLRB.

5. In the U.S., the Freedom of Information Act, 5 U.S.C. Section 552(a)(2), states in pertinent part as follows:

(2) Each agency, in accordance with published rules, shall make available for public inspection and copying --

1. final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;

2. those statements of policy and interpretations which have been adopted by the agency and are not published in the Federal Register; and

3. administrative staff manuals and instructions to staff that affect a member of the public; unless the materials are promptly published and copies offered for sale.

To the extent required to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes an opinion, statement of policy, interpretation, or staff manual or instruction. However, in each case the justification for the deletion shall be explained fully in writing. Each agency shall also maintain and make available for public inspection and copying current indexes providing identifying information for the public as to any matter issued, adopted, or promulgated after July 4, 1967, and required by this paragraph to be made available to publish. Each agency shall promptly publish, quarterly or more frequently, and distribute (by sale or otherwise) copies of each index or supplements thereto unless it determines by order published in the Federal Register that the publication would be unnecessary and impracticable, in which case the agency shall nonetheless provide copies of such index on request at a cost not to exceed the direct cost of duplication. A final order, opinion, statement of policy, interpretation, or staff manual or instruction that affects a member of the public may be relied on, used, or cited as precedent by an agency against a party other than an agency only if --

1. it has been indexed and either made available or published as provided by this paragraph; or

2. the party has actual and timely notice of the terms thereof.

(emphasis added).

On June 2, 1995, the Mexican National Administrative Office (MNAO) issued its first Report with respect to labor practices in the U.S. The Report, signed on May 31, 1995, by Miguel Angel Orozco, the MNAO Secretary, is in response to the allegations made by the Telephone Workers Union of the Republic of Mexico (TWU) against Sprint Corporation.

In essence, the MNAO Report finds that Sprint probably violated the National Labor Relations Act (NLRA) when it terminated 177 Spanish speaking employees at is San Francisco, La Conexion Familiar (LCF) subsidiary on July 14, 1994. The MNAO asks the United States Government to review the application of the pertinent NLRA provisions to the facts of this case and calls for "ministerial consultations."

The MNAO June 2, 1995 Report follows the U.S. NAO April 11, 1995 Report concluding that the Mexican Government had improperly handled an unfair dismissal complaint by 45 workers of Sony Corporation in Juarez. Based on that Report, Labor Secretary Reich had also requested "consultations" with his Mexican counterpart.

The National Administrative Offices (NAOs) were created in the three NAFTA countries by the North American Agreement on Labor Cooperation (NAALC), essentially, for the purpose of supervising the application of labor laws in the United States, Mexico, and Canada. Under the provisions of the NAALC, monetary and other penalties could be imposed on a NAFTA country if persistent patterns of violations were found to exist.

The TWU complaint against Sprint was filed with the MNAO on February 9, 1995, by Francisco Hernandez Juarez, General Secretary of the TWU, pursuant to the provisions in Annex One of the NAALC, which guarantees the employees freedom of association and right to unionize. The TWU's complaint, in essence, alleged that shortly after learning of its employees efforts to obtain representation by the Communication Workers of America (CWA), the Sprint subsidiary commenced an anti-union campaign which included the commission of numerous violations of the NLRA (unfair labor practices). The pattern of violations concluded with the termination of 177 employees approximately one week prior to the union election which had been scheduled by the National Labor Relations Board (NLRB) for July 22, 1994. The election was never conducted.

In its complaint, the TWU stated: "The globalization and regionalization that is taking place throughout the world is causing, among other phenomena, the interdependence and alliance among companies of different countries." In the TWU's view, such economic globalization, and "processes of integration, accelerated through the NAFTA," while increasing the multi-national companies' economic power, also results in weakening the workers' rights to unionize.

With respect to the speed of the processes under the NLRA, the TWU stated in its complaint that the decision of the Administrative Law Judge who had heard the unfair labor practices case against Sprint (hearing had concluded on 12/15/94), would probably be issued between March and June, 1995. "An appeal by the losing party could prolong the proceeding another two or three years according to experts. This slow process demonstrates the ineffectiveness of U.S. law in complying with the principles contained in Annex One of the North American Agreement on Labor Cooperation, to which it is now obligated."

NLRB Administrative Law Judge Gerald Wacknow issued his decion on August 30, 1995. LCF, Inc., Case 20-CA-26203. Rejecting the credibility of two key CWA witnesses, the ALJ, in essence, concluded that Sprint's true motive for closing LCF was depressing financial matters and not the possibility of a CWA victory in the representation election. The ALJ recommended to the NLRB dismissal of the pertinent section of the complaint stating ". . . it appears that the financial rationale for the closure advanced by [Sprint] was of such overriding significance that even if union-related matters were included within a list of contributing factors, the [employer] would have sustained its burden of demonstrating that LCF would have been closed regardless of such considerations."

The CWA which had filed the unfair labor practice charge against Sprint immediately after the closing of LCF, bowed to pursue it appeals rights vigorously to the NLRB and, if necessary, to the Court of appeals. CWA's President, Morton Bahr, who strongly criticized the ALJ's decision, promised to continue the legal battle against Sprint stating: "If this ruling is not a deterrent to lawbreakers, it's an open invitation to violate workers' rights."

1. Adapted from a monograph published by the author in the June 1995 issue of Inter-American Trade and International Law.

2. Jerry Morales is a partner with the law firm of Snell & Wilmer L.L.P. where he practices in the labor/employment, employee benefits and international areas. He may be reached at 602-382-6362, 800-322-0430, or through Lexis Counsel Connect, jmorales@counsel.com