The Legal Status of Unions in Mexico and the United States
TABLE OF CONTENTS
Whether the provisions of Mexican labor law pertaining to employees' right to organize comply, in their application, with the North American Agreement on Labor Cooperation (NAALC) has been a persistent subject of controversy since the implementation of that Agreement.(3) This controversy led to the announcement in early August, 1996, by the U.S. National Administrative Office (U.S. NAO)(4) that it would investigate and issue findings on whether Mexico's regulatory process with respect to the workers' rights to organize is consistent with NAALC's principles.(5) (6) Earlier this year, petitions were filed with the U.S. NAO by several organizations, alleging violations of those rights.(7) In July, the Mexican NAO urged its U.S. counterpart not to investigate said charges, arguing, in essence, that since the International Labor Organization (ILO)'s Committee on Freedom of Association was already reviewing that issue, the U.S. NAO should defer to the ILO, under the NAALC's pertinent provisions.(8)
This article compares the statutory framework which provides for the "formation" of labor unions in the U.S. and Mexico and the procedures which labor unions must follow in both countries in order to obtain and maintain their legal status.
In recent years, Mexico's labor law processes have been the subject of close scrutiny and discussion both by domestic and foreign analysts. Perhaps the area that has generated the greatest interest involves the requisites set forth in Mexican legislation for the "registration" of labor organizations. This interest is due, primarily, to the enactment of the North American Free Trade Agreement (NAFTA) and its offspring, the NAALC. The international commitments made by the NAFTA countries have brought to the surface the deep differences between each country's labor legislation, which, in good measure, derive from their different historical and cultural background.
Under Mexico's labor law framework, the importance of the corporatist structure of "official" unions (or sindicatos) is paramount. The main official association of unions, the Mexican Confederation of Workers (CTM), has been a stronghold of stability for Mexico's ruling party, the Institutional Revolutionary Party (PRI), boasting 8 to 10 million members. A consequence of the institutionalization of the CTM as an ally of the PRI has been that the Mexican government has favored and even promoted the "registry" of new unions so long as they are affiliated to the CTM and has, correspondingly, discouraged the formation, i.e., "registration" of independent unions or confederation of unions which are not CTM affiliates.(9) As explained below, "registration" with the proper governmental agency is a prerequisite under mexican law for the legal existence of a labor union. This state of affairs has been the subject of legal challenges which, recently, reached Mexico's highest court.
Thus, on May 21, 1996, Mexico's Supreme Court ruled on the right of a group of workers to constitute themselves into a labor union and obtain the necessary "registration". At issue was a law of the state of Jalisco that provided that there could be no more than one labor union representing state or municipal employees in that state. Based on Article 123 of the Mexican Constitution, which guarantees the right of a worker to join, form or separate from any specific labor organization, the Court declared the law unconstitutional and granted an injunction to the Union of Academic Personnel of the Universidad de Guadalajara. The Court noted that Jalisco's law could not restrict the constitutional right of association. On the same day, the Court, reversing a lower court ruling, also held that a group of employees from the state of Oaxaca could apply for union registration, irrespective of the fact that there was another union in the workplace.
Mexico's Federal Labor Law (FLL) protects the right of both workers and employers to associate "in the search of the study, improvement and defense of their respective interests" and provides the framework for the "registration" of labor unions.(10) The FLL, at Article 357, provides that in order to organize a union, workers or employers do not need any prior governmental authorization and Articles 359 et seq., recognize the unions' right to establish their own by-laws and rules; designate their representatives and set forth their own organization and administration.
In the case of workers, however, in order to properly constitute a labor union, the FLL, at Article 364, imposes a requirement of at least 20 members in active service, and article 365 imposes the requirement of obtaining "registration" either from the Ministry of Labor (Secretaria del Trabajo y Prevision Social or STPS), or from the appropriate Conciliation and Arbitration Board (which are Mexico's equivalent to labor courts and have jurisdiction in individual and collective claims), depending upon the specific industry involved. (Article 527 lists those industries which fall within federal jurisdiction. Labor unions in those industries must obtain registration from STPS.) Without registration with the appropriate governmental authorities there is no legal status as a labor union.
In order to "register," the prospective labor union must submit the following documents:
In most cases, each and every authentication shall be made by the General Secretary, the Organization Secretary and the Minute Secretary of the prospective labor union. (Article 365)
Under the FLL, Article 366, registration of a labor union will be denied:
And under Article 369 registration shall be cancelled:
With registration, the labor union acquires the legal status necessary under Mexican law to enter into contracts, acquire property and defend its rights and those of its members before judicial courts and administrative agencies. (FLL, Articles 374 and 375).
In order to maintain their legal status, labor unions must file reports every three months with their respective "registry" authority, which include the names of their new members and of those who have ceased membership. In addition, labor unions must inform their "registry" authority of any changes in their offices and/or in their bylaws within 10 days of said changes. The notification must be accompanied by authenticated copies of the documents reflecting said changes (FLL, Article 377).
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 is protected. The declaration of policy in the Act states:
Indeed, the most basic policy under the NLRA is the employees' free choice to form a labor organization or, to use the more popular term, to unionize, without fear of reprisal or economic penalty. Section 7 of the Act states:
Thus, the principal rights protected by Section 7 are:
Section 8 of the Act 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."
In the United States, unlike Mexico, labor unions need not be "registered" with or authorized by the federal or state governments in order to be formed or require employers to recognize them as the exclusive bargaining representative of the employer's employees, or to enter into legally binding contracts. In short, labor unions do not require governmental authorization as a prerequisite to constitute a legal entity for any purpose.
The term "labor organization" is purposely broadly defined, both in the Act and in the Labor and Management Reporting and Disclosure Act (LMRDA) 29 U.S.C. § 401 et seq., in order to preclude governmental interference or restrictions in their formation. The Act, § 2(5) (29 U.S.C. § 152(5)) states:
The LMRDA definition is very similar. § 402(i) states:
Thus, the existence of a "labor organization" is not in any way dependent upon compliance with governmental regulations.
Absent voluntary recognition by the employer, a union may require the employer to recognize and bargain with it as the "exclusive" bargaining representative of a group or "unit" of the employer's employees, by obtaining "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 Act. In order to obtain such certification from the NLRB, a union must file a petition for a secret ballot election to be conducted by the NLRB among the employees in the group or unit requested by the union (NLRA Section 9) and obtain a simple majority of the employees' votes in the election.
Generally, in order for the NLRB to process a union election petition, it must be supported by at least 30% of the group which the union seeks to represent ("showing of interest"). E.g., S. H. Kress Co., 137 NLRB 1244, 1248 (1962). Such showing of interest or support is normally submitted by unions to the NLRB in the form of individual authorization cards. E.g., Potomac Electric Co., 111 NLRB 553, 554, 555 (1955). If an election petition is supported by an adequate showing of interest, the NLRB must "investigate" such petition. Section 9(c)(1) of the Act.
Unless the parties (petitioning union and employer) stipulate on the election arrangement, the NLRB must, after "investigation," either dismiss the petition or order the election. In practically all cases, the NLRB's "investigation" consists of a formal hearing before an officer or employee of the NLRB regional office where the petition was filed, on the issues of the "appropriateness," for collective bargaining purposes, of the unit or group of employees stated in the petition and/or on the eligibility of certain individual employees or classification of employees to vote in the election. At such hearings, the union seeking the NLRB Certification and the employer have an opportunity to present evidence and argue their respective positions in propria persona or through counsel.
The NLRB's findings and legal rational, which must be issued in writing, must be consistent with the Act and with legal precedent. (NLRB Rules Section 102.67) Section 9(b) of the Act states in pertinent part:
Once the issues of eligibility and/or the composition of the group or unit of employees are decided, the NLRB must either dismiss the petition, if the union declines to proceed, or "direct an election by secret ballot and shall certify the results thereof." Section 9(c)(1) of the NLRA. The Act, Section 9(c)(2), specifically provides that the NLRB must apply the same rules "irrespective of the identity of the persons filing the petition."
Once certified, the union has the right to demand that the employer engage in good faith collective bargaining for a contract on terms and conditions of employment of the employees it represents. An employer's failure to recognize and bargain with a union that has been certified by the NLRB as the exclusive bargaining representative of the employer's employees, constitutes an unfair labor practice; that is, a violation of Section 8 of the NLRA. Upon a duly filed charge alleging such violation, the General Counsel of the NLRB must prosecute the employer. Sections 8(a)(5) and 3(d) of the Act.
In sum, in the U.S., unlike in Mexico, labor unions do not require government authorization or "registration" as a prerequisite to their formation or in order to petition for a secret ballot election among the employees they seek to represent to be conducted by the federal government. If elected by a simple majority of said employees in an appropriate group or unit, the union's right to require recognition and bargaining by the employer must be prosecuted by the federal government.
In order to maintain their legal existence, including the rights to represent employees and/or to enter into collective bargaining or other contracts, labor unions are not required under U.S. law to disclose the names of their members. Importantly, while the LMRDA imposes certain reporting requirements on labor unions,(11) which may be enforced by union members or by the Secretary of Labor through civil actions, failure to comply with said reporting requirements does not deprive unions of their right to file petitions for election with and obtain certifications from the NLRB, nor to file unfair labor practice charges which, if meritorious, would require the NLRB General Counsel to prosecute employers in order to require union recognition and bargaining.
The LMRDA § 431 (see fn. 11) covers the reporting requirements on labor organizations which, prior to 1959, were required by Section 9(f) and (g) of the Act. 29 U.S.C. § 159(f) and (g).
Sections 9(f) and (g) were repealed by the LMRDA in 1959. Those sections provided that unions that failed to meet the filing requirements were deprived of access to NLRB processes, i.e., would not be certified under the Act and no complaint could be issued by the NLRB on charges filed by them.(12) The legislative history of the LMRDA reveals the considerations which led to their repeal. Senate Report No. 187 stated in pertinent part:
While the basic labor laws of both the U.S. and Mexico proclaim the protection of the worker's right to organize, the procedures followed in both countries are drastically different. In Mexico, labor unions depend upon the governmental imprimatur for their very existence. In the U.S., it is the workers' election, by secret ballot, pursuant to procedures specified in Section 9 of the NLRA and in the regulations published by the NLRB, that grants or denies legal status as a labor union.
1. Jerry Morales is a partner in the law firm of Snell & Wilmer L.L.P., officed in Phoenix, Arizona, where he represents management in labor/employment and international matters. Snell & Wilmer L.L.P. also has offices in Tucson, Arizona; Orange County, California; and Salt Lake City, Utah.
2. Octavio Novaro was a visiting attorney at the law firm of Snell & Wilmer L.L.P. during the summer of 1996. Mr. Novaro is an associate in the law firm of Barrera, Siqueiros Y Torres Landa, S.C., in Mexico City.
3. See, e.g. 118 Daily Labor Report (DLR) A-5, June 19, 1996; 156 DLR, CC-1, August 13, 1996; and 159 DLR A-5, August 16, 1996.
4. National Administration Offices (NAOs) were created by the NAALC for the purpose, in essence, of supervising the application of the labor laws in the three NAFTA countries and their compliance with the NAALC's principles.
5. 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."
6. 149 DLR A-8, August 2, 1996.
7. Human Rights Watch/Americas, International Labor Rights Fund and the Mexican-based National Association of Democratic Lawyers.
8. 159 DLR A-5, August 16, 1996.
9. In recent years, however, some independent movements have gained strength, e.g., the Revolutionary Worker's Confederation or COR; the Authentic Worker's Front or FAT and the Telephone Worker's Union.
10. Title VII ("Collective Working Relations"), Chapter II ("Unions, Federations and Confederations"), Article 356. Article 8 of the FLL establishes that any person who renders to another person or entity "a personal subordinate service" shall be considered a worker. Article 10 establishes that any person or entity that utilizes the services of one or more workers, will be deemed an employer.
11. LMRDA § 431 provides:
Report of labor organizations
(a) Adoption and filing of constitution and bylaws; contents of report
Every labor organization shall adopt a constitution and bylaws and shall file a copy thereof with the Secretary, together with a report, signed by its president and secretary or corresponding principal officers, containing the following information--
(b) Annual financial report; filing, contents
Every labor organization shall file annually with the Secretary a financial report signed by its president and treasurer or corresponding principal officers containing the following information in such detail as may be necessary accurately to disclose its financial condition and operations for its preceding fiscal year--
all in such categories as the Secretary may prescribe.
(c) Availability of information to members; examination of books, records, and accounts
Every labor organization required to submit a report under this subchapter shall make available the information required to be contained in such report to all of its members, and every such labor organization and its officers shall be under a duty enforceable at the suit of any member of such organization in any State court of competent jurisdiction or in the district court of the United States for the district in which such labor organization maintains its principal office, to permit such member for just cause to examine any books, records, and accounts necessary to verify such report. The court in such action may, in its discretion, in addition to any judgment awarded to the plaintiff or plaintiffs, allow a reasonable attorney's fee to be paid by the defendant, and costs of the action.
12. "(f) No investigation shall be made by the Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless such labor organization and any national or international labor organization of which such labor organization is an affiliate or constituent unit (A) shall have prior thereto filed with the Secretary of Labor copies of its constitution and bylaws and a report, in such form as the Secretary may prescribe, showing--
and (B) can show that prior thereto it has--
"(g) It shall be the obligation of all labor organizations to file annually with the Secretary of Labor, in such form as the Secretary of Labor may prescribe, reports bringing up to date the information required to be supplied in the initial filing by subsection (f)(A) of this section, and to file with the Secretary of Labor and furnish to its members annually financial reports in the form and manner prescribed in subsection (f)(B). No labor organization shall be eligible for certification under this section as the representative of any employees, and no complaint shall issue under section 10 with respect to a charge filed by a labor organization unless it can show that it and any national or international labor organization of which it is an affiliate or constituent unit has complied with its obligation under this subsection.