U.S. National Administrative Office
Bureau of International Labor Affairs
U.S. Department of Labor
April 28, 1998
TABLE OF CONTENTS
EXECUTIVE SUMMARY
I. INTRODUCTION
II. SUMMARY OF SUBMISSION NO. 9702
A. Case Summary
B. Issues
C. Action Requested
III. NAO REVIEW
A. Information from the Submitters
B. Information from the Mexican NAO
C. Information from Han Young and Hyundai Corporation
D. Public Hearing
E. Post-Hearing Information
IV. NAALC OBLIGATIONS AND MEXICAN LABOR LAW
A. NAALC Obligations
B. Relevant Mexican Law on Freedom of Association
C. Relevant Law on Labor Tribunals and Labor Tribunal
Proceedings
1. Union Registration
2. Union Representation
D.
International Labor Organization (ILO) Conventions 87 and
98
V. ANALYSIS
A. Freedom of Association
B. Procedural Guarantees
1. Compliance by Mexico with NAALC Articles
5(1) and 5(2)
2. Compliance by Mexico with NAALC Article 5(4)
3. ILO Convention 87
C. Initiatives
by the Government of Mexico
1. New Labor Culture
2. Program for Employment, Training, and the Defense of
Labor Rights: 1995-2000
VI. FINDINGS
VII. RECOMMENDATION
ENDNOTES
PUBLIC REPORT OF
REVIEW OF NAO SUBMISSION NO. 9702
I. INTRODUCTION
The U.S. National Administrative Office (NAO) was established pursuant
to the North American Agreement on Labor Cooperation (NAALC). The NAALC,
the labor supplemental agreement to the North American Free Trade
Agreement (NAFTA), provides for the review of submissions concerning labor
law matters arising in Canada or Mexico by the U.S. NAO. Article 16 (3) of
the NAALC states:
[e]ach NAO shall provide for the submission and receipt, and
periodically publish a list, of public communications on labor law matters
arising in the territory of another Party. Each NAO shall review such
matters, as appropriate, in accordance with its domestic procedures.
"Labor law" is defined in Article 49 of the NAALC, as follows:
laws and regulations, or provisions thereof, that are directly
related to: (a) freedom of association and protection of the right to
organize; (b) the right to bargain collectively; (c) the right to strike;
(d) prohibition of forced labor; (e) labor protections for children and
young persons; (f) minimum employment standards, such as minimum wages and
overtime pay, covering wage earners, including those not covered by
collective agreements; (g) elimination of employment discrimination on the
basis of grounds such as race, religion, age, sex, or other grounds as
determined by each Party's domestic laws; (h) equal pay for men and women;
(i) prevention of occupational injuries and illnesses; (j) compensation in
cases of occupational injuries and illnesses; (k) protection of migrant
workers.
Procedural guidelines governing the receipt, acceptance for review, and
conduct of review of submissions filed with the U.S. NAO were issued
pursuant to Article 16 (3) of the NAALC. The U.S. NAO's procedural
guidelines were published and became effective on April 7, 1994, in a
Revised Notice of Establishment of the U.S. National Administrative Office
and Procedural Guidelines.(1) Pursuant to these guidelines, once a
determination is made to accept a submission for review, the NAO shall
conduct such further examination of the submission as may be appropriate
to assist the NAO to better understand and publicly report on the issues
raised therein. The Secretary of the NAO shall issue a public report that
includes a summary of the review proceedings and findings and
recommendations. The review must be completed and the public report issued
within 120 days of acceptance of a submission for review, unless
circumstances require an extension of time of up to 60 additional days.
Submission No. 9702 was filed on October 30, 1997, by the Support
Committee for Maquiladora Workers (SCM), the International Labor Rights
Fund (ILRF), the National Association of Democratic Lawyers (Asociaci¢n
Nacional de Abogados Democr ticos, hereinafter ANAD) of Mexico,
and the Union of Metal, Steel, Iron, and Allied Workers (Sindicato de
Trabajadores de la Industria Metalica, Acero, Hierro, Conexos y Similares,
hereinafter STIMAHCS) of Mexico. It was accepted for review by the NAO on
November 17, 1997. On December 26, 1997, the Maquiladora Health and Safety
Support Network (MHSSN) requested to be included as a co-submitter. This
request was granted. On February 9, 1998, MHSSN, together with Worksafe!
Southern California (WSC), the United Steelworkers of America (USWA), the
United Auto Workers (UAW), and the Canadian Auto Workers (CAW) filed an
addendum to the submission which provided additional information on the
health and safety issues raised in the original submission. This addendum
was accepted and incorporated into the NAO review, and WSC, the USWA, the
UAW, and the CAW were included as co-submitters.
Due to the complexity of the health and safety issues, which are being
raised under the NAALC for the first time, combined with the relatively
late filing of the health and safety addendum, two reports will be issued
on Submission No. 9702. The instant report will address the issues of
freedom of association and the compliance by Mexico with its procedural
obligations under the NAALC. The health and safety issues will be reviewed
separately and a report will be issued at a later date in accordance with
the NAO's procedural guidelines.
Submission No. 9702 raises issues of freedom of association and safety
and health at a truck chassis welding/assembly facility in Tijuana, Baja
California, Mexico, owned by Han Young de Mexico, S.A. de C.V.
(hereinafter Han Young). Han Young assembles chassis for Hyundai Precision
America, a subsidiary of Hyundai Corporation of Korea. The submitters
argue that Mexico is in violation of NAALC Article 5(4) in failing to
ensure that its labor tribunal proceedings are impartial and independent;
Article 5(1) in failing to ensure that such proceedings are fair,
equitable and transparent; Article 5(1)(d) in failing to ensure that such
proceedings are not unnecessarily complicated and do not entail
unwarranted delays; Article 5(2)(b) in failing to ensure that final
decisions in labor proceedings are made available without undue delay; and
Article 3(1)(g) in failing to enforce its labor laws protecting workers'
rights and safety and health through appropriate actions. The submitters
assert that Mexico has failed to enforce its Federal Labor law which
protects freedom of association as well as the safety and health of
workers; the Mexican Constitution which protects freedom of association;
and ILO Convention 87 on freedom of association, which Mexico has
ratified, and ILO Convention 98 on the right to organize and bargain
collectively, which, according to the submitters, is binding on Mexico as
a member of the ILO.
The submitters also raised the issue of compliance by Mexico with its
labor laws on wages, payment of wages, seniority, perjury,(2) and profit
sharing. However, the information provided by the submitters on these
matters did not sufficiently establish that violations of Mexican law may
have taken place and did not provide sufficient information to enable the
NAO to adequately review these matters. Further, the submitters did not
establish that
these issues may have involved the failure to enforce its laws on the
part of the Government of Mexico. Therefore, these matters are not
addressed in this report.
II. SUMMARY OF SUBMISSION 9702
A. Case Summary
According to the submitters, beginning in April 1997, workers at the Han
Young maquiladora plant in Tijuana, Baja California, Mexico, began to
organize an independent union. The submitters state that the workers
wanted a union to address issues of safety and health, job classifications
and wage scales, low wages, annual bonuses, profit sharing, lack of dining
facilities, and the lack of a company doctor in the plant. Among the cited
health and safety concerns of the workers was the frequent occurrence of
injuries such as burns and broken bones. They also expressed concern about
respiratory illnesses, hearing loss, and loss of vision. According to the
submitters, the workers believed that these problems were caused by the
lack of compliance with government regulations and failure to follow
safety practices such as local exhaust ventilation, periodic hazard
identification and control, exposure monitoring, medical surveillance,
health and safety training and other hazard control measures. The
submitters also asserted that the company failed to provide adequate
personal protective equipment such as safety shoes, safety glasses,
chemical-resistant gloves, respirators and face shields.
The workers elected a union executive committee on May 31, 1997, and
presented a petition listing demands to the plant management. After the
election of the executive committee, Han Young management arranged for the
workers to meet with a representative of a union that was already present
at the plant and had previously entered into a collective bargaining
agreement with the company. This local union (Union de Trabajadores de
Oficios Varios "Jose Maria Larroque") was affiliated
with the Revolutionary Confederation of Workers and Peasants (Confederacion
Revolucionaria de Obreros y Campesinos - CROC). The CROC is affiliated
with the Labor Congress (Congreso del Trabajo - CT) which groups
together union organizations aligned with Mexico's dominant political
party, the Institutional Revolutionary Party (Partido Revolucionario
Institucional - PRI).(3) The submitters maintain that the union had never
before met with the workers at the plant and that workers had not seen a
copy of the collective bargaining agreement, which had purportedly been
signed between the company and the CROC union.
The workers struck for a day on June 2 and, following what appeared to
be positive discussions with company management, returned to work the
following day. On July 15, 1997, the workers temporarily suspended their
efforts to organize an independent union and elected to affiliate with the
already registered STIMAHCS. Though STIMAHCS already possessed
registration, it had, at that time, no membership in the maquiladoras and
is not affiliated to the CT. The submitters indicated that STIMAHCS is
considered to be more responsive to the interest of workers, compared to
the unions affiliated to the major confederations. (4)
On June 16, in response to a request from the workers, a health and
safety inspection of the factory was conducted by the Inspectorate of
Labor, in which forty-one health and safety violations were cited.
Specific corrective action was ordered for twenty-three of these
violations. The company was given from fifteen to twenty-five work days,
depending on the violation, to remedy these deficiencies.
In mid-July the company hired a new director of human resources and
began, according to the submitters, a campaign of harassment, intimidation
and reprisals against the supporters of STIMAHCS. Allegedly, several union
supporters were fired and one was physically attacked by the plant
manager. The dismissed workers filed petitions for reinstatement with the
local Conciliation and Arbitration Board (CAB). The submitters maintain
that the company attempted to persuade the fired workers to drop their
petitions for reinstatement in return for severance payments, which they
refused to do. They also maintain that the company attempted to persuade
the workers to remain affiliated to the CROC.
On August 6, 1997, STIMAHCS filed for collective bargaining
representation (titularidad)(5) with the local CAB, in effect,
challenging the CROC union for exclusive bargaining rights at the plant.
During the first week of September, according to the submitters, twenty
new workers were brought in by the company, allegedly to dilute support
for STIMAHCS, and representatives from the Confederation of Mexican
Workers (Confederacion de Trabajadores Mexicanos - CTM), which is
also affiliated to the CT, arrived at the plant to meet with the workers.
On September 5, 1997, the Inspectorate of Labor conducted a follow-up
safety and health inspection to verify compliance with the corrective
measures mandated in the June 16 inspection. The inspector found that Han
Young had corrected eighteen of the twenty-three violations for which
corrective action had been ordered. No fines or other sanctions were
levied at that time.
A hearing to verify the credentials of the contending parties, hear
challenges, and set a date for a representation election, was scheduled to
be held on September 3, 1997, by the CAB. According to the CAB, this
hearing was postponed to September 25 because of a clerical error. The
submitters assert the actual reason was to allow the company more time to
campaign against the union. At the September 25 meeting, the CAB heard
arguments, reviewed the credentials of the parties, and set the
representation election date for October 6, 1997, despite efforts by the
CROC union to further postpone the proceedings. At this hearing, the CAB
overruled objections by the CROC union that STIMAHCS lacked the
appropriate certification to represent the Han Young workers in Baja
California.
As the date of the election approached, the submitters claim that
management continued its campaign of intimidation against STIMAHCS
supporters and threatened workers with the loss of their jobs if that
union won the election. Shortly prior to the election, the president of
the local CAB, who had agreed to conduct the election, submitted his
resignation. The submitters maintain, but do not substantiate, that this
occurred at the instigation of the CROC and was intended to ensure an
election outcome favorable to that organization.
On October 6, 1997, the representation election took place as scheduled
at the offices of the CAB. According to the submitters, fourteen
international observers, including representatives from U.S. unions and
non-governmental organizations (NGOs) were present. The submitters allege
that the company transported a group of thirty-five workers, including
supervisory personnel and new hires, to the voting site, where they were
allowed to cast their ballots. According to the submitters, none of these
people were eligible to vote but STIMAHCS representatives and supporters
were prevented from checking the credentials of voters, whereas the
credentials of STIMAHCS supporters were carefully scrutinized. Following
the balloting, it was announced that STIMAHCS had won the election by a
vote of 54-34 over the CROC. (The CTM had withdrawn from the contest on
the day of the vote.)
According to the submitters, in the days following the vote, the
company dismissed another four workers who were supporters of STIMAHCS and
the general manager announced that the company intended to bring in fifty
replacement workers from Veracruz and fire all of the union supporters.(6)
The submitters maintain that a total of twelve workers were fired by the
company for their support of STIMAHCS.
At a CAB hearing on October 16, both STIMAHCS and the CROC challenged a
number of the ballots cast at the representation election. The CAB then
announced that it had concluded its proceedings in this case and would
certify the result of the election after reviewing the evidence. However,
on November 10, the CAB issued a ruling that nullified the election
results on the grounds that STIMAHCS had failed to adequately substantiate
that it had the support of the majority of the workers at the plant and
that it lacked the proper registration to represent the workers at Han
Young. Union representation remained with the CROC union. STIMAHCS filed
an appeal against this decision with a Federal Appeals Court.
Additionally, four workers went on a hunger strike in protest.
Following considerable publicity on the case, the Mexican Federal
Government intervened and mediated an agreement among the parties. The
agreement called for a new representation election, to be conducted under
the supervision of state and Federal authorities. The parties agreed to
abide by the outcome of this election, suspend all legal action they had
undertaken, and desist from further conflict within Han Young. Pursuant to
the agreement, registration would be granted to an independent union named
the Union of Industrial and Commercial Workers "October 6" (Sindicato
de Trabajadores de la Industria y del Comercio "6 de Octubre").
The workers intended for this independent union to eventually supplant
STIMAHCS as their collective bargaining representative. Additionally, all
of the workers who were dismissed were to be offered reinstatement to
their jobs.
The second representation election at Han Young took place on December
16, 1997. An affiliate of the CTM took part in this three-way election.(7)
The election was won again by STIMAHCS, by a vote of 30 for STIMAHCS, 26
for the CTM affiliate, and two for the CROC union. The hunger strikers
ended their fast. On January 12, 1998, STIMAHCS was recognized by the CAB
as the collective bargaining representative at the plant and "October
6 " was granted registration. All but one of the workers accepted
reinstatement to their jobs.
The submitters reported that, while these events were underway, a
number of workers narrowly averted serious injury when a hoist dropped a
chassis and another hoist swung out of control. On January 23, a
delegation of forty-five workers went to the local office of the
Secretariat of Labor and Social Welfare and demanded a repeat safety
inspection of the plant. This inspection was conducted on January 27 and
it was reported that, later in February, a fine of approximately $9,000
was assessed against Han Young for safety and health violations.
Apparently, this amount represented the total of two fines assessed
against Han Young for violations found in the inspections conducted The
Mexican NAO subsequently informed the U.S. NAO that this apparently
referred to two fines were assessed against Han Young for violations
discovered during the inspections of June 16 and September 5, 1997.(8)
STIMAHCS requested negotiations with Han Young began in mid-March. The
submitters assert that these negotiations have not progressed, however,
and that the CROC and CTM continue to be active in the plant and continue
to harass and intimidate workers with the cooperation of plant management
in their joint effort to keep other unions out of the workplace. Further,
the submitters assert that the reinstated workers have been subjected to
reprisals by the company through denying them wage increases granted to
other workers and other forms of harassment and that eleven workers have
been fired in retaliation for union activities. Finally, the submitters
allege that the company has hired additional workers as part of an effort
to defeat STIMAHCS in a new representation election and that the CTM, in
alliance with the CROC, has filed a petition for a new union election. The
CAB has scheduled a hearing for May 21, 1998, at which a date for a new
representation election will be set. The submitters assert that the
outcome of this next election is in doubt given the recent efforts against
the union by the company.
B. Issues
The submitters argue that Mexico is in violation of NAALC Article 3(1)
in failing to enforce its labor laws through appropriate actions. In
failing to enforce its labor laws, the submitters argue that Mexico is
also in violation of the country's Constitution, which protects freedom of
association, ILO Convention 87 on freedom of association, which Mexico has
ratified, and ILO Convention 98 on the right to organize and bargain
collectively, which Mexico has not ratified.
The submitters also argue that Mexico is not in compliance with NAALC
Article 5(4) in failing to ensure that its labor tribunal proceedings are
impartial and independent; Article 5(1) in failing to ensure that such
proceedings are fair, equitable and transparent; Article 5(1)(d) in
failing to ensure that such proceedings are not unnecessarily complicated
and do not entail unwarranted delays; and Article 5(2)(b) in failing to
ensure that final decisions in labor proceedings are made available
without undue delay.
C. Action Requested
The submitters requested that the NAO undertake the following measures
regarding freedom of association violations:
- urge that the CAB immediately certify the STIMAHCS election victory
in the election of October 6 and enforce all Mexican laws regarding the
rights of workers to organize and bargain collectively;
- initiate a review pursuant to Article 16 of the NAALC;
- hold public hearings on the case, preferably in Tijuana, Mexico; and
- initiate a process to require the Mexican government to end the
favoritism and political discrimination exhibited by the CABs in
granting legal recognition and bargaining rights to unions.
III. NAO REVIEW
In conducting its review, the NAO sought and obtained information from
the submitters, the employer, the Mexican NAO, and the Hyundai
Corporation. A public hearing was held in San Diego, California, on
February 18, 1998, at which the submitters, workers, employer
representatives, and expert witnesses testified.
A. Information from the Submitters
Following the filing of the submission on October 30, 1997, and the
health and safety addendum on February 9, 1998, the submitters provided
updates on developments at the plant up to and subsequent to the public
hearing conducted on February 18, 1998.
B. Information from the Mexican NAO
The U.S. NAO addressed questions to the Mexican NAO on the submission
and Mexican law and its implementation in letters dated October 1, 1997
(prior to the receipt of the submission),(9) February 10, and February 25,
1997.(10) The U.S. and Mexican NAOs also engaged in a number of other
consultations as the case developed.
In a letter dated October 24, 1997, the Mexican NAO provided
information on Mexican labor law on the adjudication of disputes involving
jurisdictional conflicts and representation rights among different unions
in the same workplace. The Mexican NAO stated that it had received
assurances from the Baja California labor authorities that the law had
been complied with and that no violations of workers' freedom of
association had occurred at the Han Young facility.
In letters dated March 27 and March 30, 1998, the Mexican NAO provided
additional information on Mexican law and practice on determining union
representation and on safety and health laws and their application. (11)
C. Information from Han Young and Hyundai Corporation
Mr. Ho Young Lee, President of Han Young, responded by letter dated
February 12, 1998, to a written inquiry from the NAO on the issues raised
in the submission.(12) In his letter Mr. Lee stated that Han Young pays wages
in excess of the minimum wage; the company provides adequate safety and
health equipment; the company has been inspected regularly by the safety
and health authorities; the company did not take sides in the
jurisdictional dispute between the two unions; that workers who were
dismissed were dismissed for cause; that he thought it unfair that workers
hired after the petition for a representation election were not allowed to
vote; and that Han Young had not received formal written notification
designating the collective bargaining representative at the plant.
Hyundai Precision America replied in writing on December 29, 1997, to a
letter from the U.S. NAO dated December 12 requesting information on the
relationship between Han Young and Hyundai and the allegations made in the
submission. Hyundai stated that while Han Young is a supplier of that
firm, Hyundai has no ownership or any management control over the company.
Hyundai stated that it supports the legal rights of workers to unionize in
its own assembly plant in Baja California and that the plant complies with
Mexican laws. (13)
D. Public Hearing
The NAO conducted a public hearing on Submission No. 9702 in San Diego,
California, on February 18, 1998. Notice of the hearing was published in
the Federal Register on January 14, 1998. (14)
Twenty-seven employees of Han Young testified as to their experiences
in the union organizing effort and on health and safety conditions in the
plant. Seven additional witnesses provided information on events at Han
Young, Mexican labor law, and health and safety issues.
The General Manager of Han Young spoke on behalf of his company and
counsel for Han Young testified on behalf of the company and on Mexican
labor law as it applied to the case.
Mr. Eric Myers of the USWA read a prepared statement on behalf of
George Becker, International President of the USWA.
E. Post-Hearing Information
In a letter to the NAO dated March 3, 1998, Han Young President Mr. Ho
Young Lee, provided additional information on pay and benefits at the
plant, challenged some of the testimony presented at the hearing, and
submitted supporting documentation. (15)
IV. NAALC OBLIGATIONS AND MEXICAN LABOR LAW
A. NAALC Obligations
Part One of the NAALC lists the objectives to which the Parties commit
themselves, including the promotion, to the maximum extent possible, of
the labor principles set out in Annex 1. The first principle is freedom of
association and protection of the right to organize, which protects "the
right of workers exercised freely and without impediment to establish and
join organizations of their own choosing to further and defend their
interests."
Part Two of the NAALC sets out the obligations of the Parties. Article
3 (1) commits the Parties to effectively enforce their labor law through
appropriate government action. Article 5(1) states that: "[e]ach
Party shall ensure that its administrative, quasi-judicial, judicial and
labor tribunal proceedings for the enforcement of its labor law are fair,
equitable and transparent and, to this end, each Party shall provide that:
(a) such proceedings comply with due process of law;
(b) any hearings in such proceedings are open to the public, except where
the administration of justice otherwise requires;
(c) the parties to such proceedings are entitled to support or defend
their respective positions and to present information or evidence; and
(d) such proceedings are not unnecessarily complicated and do not entail
unreasonable charges or time limits or unwarranted delays."
Article 5(2) states in relevant part that "[e]ach Party shall
provide that final decisions on the merits of the case in such proceedings
are . . . (b) made available without undue delay to the parties to the
proceedings and, consistent with its law, to the public . . . ."
Article 5 (4) of the NAALC provides that "[e]ach Party shall
ensure that tribunals that conduct or review such [labor] proceedings are
impartial and independent and do not have any substantial interest in the
outcome of the matter."
B. Relevant Mexican Law on Freedom of Association
Freedom of association is protected by Mexico's Constitution. Article
19 states that "[t]he right to association or to hold meetings for
any legal purpose cannot be curbed."(16) Article 123(A) provides the
framework for regulating labor matters in the private sector and protects
workers from dismissal or reprisal by employers for union activities. (17)
Mexican labor law in the private sector is codified as the Federal
Labor Law(Ley Federal del Trabajo) (hereinafter FLL).(18) Relevant to
the freedom of association issues raised in the instant submission are
Articles 47 (dismissal), 133 (employer prohibited practices), 357-359
(right to organize), 360 (types of union organization), 387 (obligation to
bargain collectively), 388 and 389 (union representation), 527 (industries
under Federal jurisdiction), 870-891 (proceedings before the CABs),
892-899 (jurisdictional disputes), and 931 (representation elections).
C. Relevant Law on Labor Tribunals and Labor Tribunal
Proceedings
FLL Articles 604 - 624 establish the CABs as the primary authorities
responsible for the adjudication of individual and collective
labor-management disputes, union representation and jurisdictional
disputes, and other disputes deriving from the employment relationship.
Federal CABs have authority over industries specifically identified in the
FLL, while local CABs, operating under the authority of the states, have
jurisdiction over all other industries. All CABs, however, enforce the
same national law - the FLL.(19) In the case of Han Young, jurisdiction was
exercised by the local CAB for the city of Tijuana in the state of Baja
California.
FLL Articles 625 through 675 govern the composition of the CABs. Each
CAB consists of one representative from the government, who is the
President, and one representative each from management and labor. A
Secretary General, assisted by a support staff, manages the affairs of the
tribunal. The Presidents are designated by the Secretary of Labor and
Social Welfare in the case of Federal CABs, and by the Governors of the
states in the case of local CABs, and serve for a term of six years. Labor
and management representatives are selected in conventions held by their
respective organizations conducted under the supervision of the federal or
state labor authorities. They also serve for six-year terms. The FLL
provides detailed procedures for convening the conventions, selecting
delegates, and the election of representatives to the CABs. In practice,
the largest and most representative labor organizations within the area of
jurisdiction of the CAB are those represented on the CABs.(20) These unions
are the large and established labor organizations, such as the CTM, CROM,
and CROC, aligned with the dominant political party, the PRI. (21)
CABs have jurisdiction over a wide range of labor disputes from
individual cases involving wrongful dismissal to collective cases
involving union representation and strikes.(22) The Secretariat of Labor and
Social Welfare estimated that the Federal CABs heard about 53,000 cases
during 1996.(23)
Oversight and regulation of unions are exercised by the Secretariat of
Labor and Social Welfare (STPS) in the case of unions under Federal
jurisdiction and by the local CABs in the case of industries under state
jurisdiction. Two important instruments of regulation and oversight by the
government are union registration and the determination of union
representation rights. At the Federal level, union registration is handled
by the Registry of Associations of the STPS, while the Federal CAB
adjudicates matters involving collective bargaining representation. At the
local level, jurisdiction over both of these important functions of
collective labor relations is exercised by the local CABs under state
jurisdiction.
1. Union Registration
In Mexico,registration by the administrative authorities grants unions the means by
which they conduct their affairs. Without registration, a union cannot
hold or dispose of property, represent itself or its members, or otherwise
conduct business. Before a union can contest a representation election, it
must be registered.(24)
FLL Articles 356-385 establish the procedures for obtaining union
registration. Registration of the union requires the presentation of the
following documents to the local CAB: (1) a certified copy of the minutes
of the general meeting at which the union was established; (2) a list of
the names of the members and of their employers; (3) a certified copy of
the bylaws; and (4) a certified copy of the minutes of the meeting at
which the Board of Directors was elected.(25)
Once the required documents are presented to the CAB, registration
occurs within sixty days unless the CAB determines that: (1) the purposes
of the union do not coincide with those set out in Article 356 ("the
study, advancement and defense of the . . . [rights of workers]");
the union does not have the minimum number of workers established by
Article 365 (20 workers); or (3) the union has not submitted all of the
documents required by Article 365.(26)
A reading of the statute indicates that the registration of a union is
to be granted automatically within a sixty-day period if the CAB does not
rule to the contrary or fails to act at all, though in practice this is
not always the case. In practice, the CAB must declare that a union is
registered and issue a certificate to that effect for the union to possess
the legal standing to represent itself or its members. The certification
is reviewed by the authorities when the union appears before them in a
legal proceeding. In effect, registration does not take place without the
issuance of a certificate. Certificates attesting to registration are not
issued automatically after the sixty-day period expires.
2. Union Representation
The CABs also award representation rights to unions within a workplace or within an industry,
as appropriate, in accordance with FLL Articles 388, 389, 892-899, and
931. The representation election (recuento) is one method used for
determining the union representation preference of the workers in cases
where two or more unions contest representation within the same workplace.(27)
Only registered unions may compete in a representation election. A union
granted representation by the CAB has exclusive bargaining rights for all
workers in the bargaining unit, or the workplace, as the case may be. FLL
Article 395 provides that an "exclusion" clause may be included
in the collective bargaining agreement. This clause obliges a company to
hire only members of the union and may require the company to dismiss from
employment any worker who has been expelled from the union. Most
collective bargaining agreements in effect in Mexico have this clause.
D. International Labor Organization (ILO) Conventions 87
and 98
The submitters assert that Mexico is in violation of ILO Conventions 87
on Freedom of Association and Protection of the Right to Organize and 98
on the Right to Organize and Collective Bargaining. Mexico ratified
Convention 87 in 1950, but has not ratified Convention 98.
The ILO has issued a number of reports on union registration
requirements in different countries. These were reviewed and reported on
by the NAO in its Public Report of Review of NAO Submission No. 9601.(28) The
Committee of Experts on the Application of Conventions and
Recommendations, commenting on union registration requirements, has found
that granting certain rights and prerogatives to the most representative
labor organization in the workplace is consistent with Convention 87
provided that this does not deprive the other organizations of the means
to conduct their own business and represent themselves.(29) On collective
bargaining representation, the Committee has stated that the determination
of the most representative organizations must be "based on objective,
pre-established, and precise criteria so as to avoid any possibility of
bias or abuse."(30) The Committee has also declared that efforts by
governments(31) and employers(32) to coerce workers or otherwise influence their
choice of the organization to which they wish to belong are inconsistent
with Conventions 87 and 98.
V. ANALYSIS
A. Freedom of Association
Article 1 of the NAALC commits the Parties to promote the labor
principle of freedom of association and protection of the right to
organize while Article 3 obliges the Parties to enforce their labor laws.
The instant submission raises two issues related to the enforcement of
laws on freedom of association, namely (1) enforcement by Mexico of its
laws protecting workers from employer retaliation and interference in the
exercise of their rights; and (2) enforcement by Mexico of its laws on
union representation and jurisdiction.
Employer efforts to coerce or otherwise persuade workers to affiliate
or not affiliate to a union are prohibited by FLL Article 133. There is
information that strongly suggests the management of Han Young favored
representation first by the CROC union and later the CTM union, and
attempted to influence workers on their choice through threats,
intimidation, and dismissal. According to the submitters, Han Young
organized a meeting between the workers and the CROC union shortly after
the workers began their organizing effort.(33) The submitters assert that Han
Young offered a cash payment equal to $2000 to one of the worker leaders
to stop his union activities.(34) The submitters also provided information
that Han Young offered cash payments of about $125 to each worker who
would vote for the CTM during the second representation election. There is
also information that Han Young threatened to fire all of the supporters
of STIMAHCS and replace them if STIMAHCS won the representation election
and otherwise expressed its opposition to STIMAHCS.(35) The submitters assert
that a total of twelve supporters of STIMAHCS were fired for supporting
STIMAHCS.
Dismissal without just cause is prohibited by FLL Article 47. The
submitters assert that twelve workers, many of them STIMAHCS union
activists or supporters, were dismissed after the organizing drive began
and labor-management tensions increased, especially following the one-day
strike in June. They assert that the dismissals were in retaliation for
the organizing effort and intended to intimidate other workers. Management
claims that these workers were dismissed for reasons unrelated to their
organizing activities and that instead the dismissals were based on poor
work performance or for violations of employer policies.
The NAO finds that the timing of these events raises serious questions
about management's motives. All of these employees have been rehired to
date, following negotiations and a settlement that was facilitated by both
State and Federal Government officials. However, these same employees
reported that management continues to single them out and treat them
unfavorably as compared to employees who are not affiliated to or did not
support STIMAHCS.(36)
Mexican law provides that a representation election may be used to
determine the majority preference when two or more unions contest for
representation in the same workplace. A representation election took place
on October 6. There is considerable testimonial evidence that the election
was plagued with irregularities including changing the election date with
little notice, threats to the workers supporting STIMAHCS, and the ability
of persons without proper credentials to enter the voting premises and
cast ballots. (37)
FLL Article 931(IV) provides that workers recruited after the date of
the petition for union representation may not participate in the election.
Neither may "employees of trust" (trabajadores de confianza)(38).
STIMAHCS filed for representation on August 8, 1997, and workers hired by
Han Young after that date should not have been permitted to vote.(39) The
submitters assert, and workers testified, that ineligible workers were
brought in by management in support of the CROC union, and were allowed,
by CAB officials, to take part in the voting, despite the objections of
STIMAHCS representatives.(40) In addition to the testimony of the workers, it
was reported by the print media that international observers present at
the election recounted similar irregularities with the election process.(41)
Despite considerable irregularities designed to influence the workers
and the voting process, STIMAHCS won a convincing victory in the election.
However, the CAB nullified the vote, ruling that STIMAHCS failed to
demonstrate that it had the support of a majority of the workers in the
workplace. The CAB stated that the representation election only showed the
sympathies of the workers toward STIMAHCS during a given moment in time
and was insufficient to prove that STIMAHCS had majority support. The CAB
cited decisions by appeals courts and the Supreme Court dated 1969, 1971,
1972, 1973, and 1974 in support of this position.(42) The CAB did not specify
how a union was expected to demonstrate that it had majority support.
The CAB also ruled that STIMAHCS was registered before the Registrar of
Associations of the Secretariat of Labor and Social Welfare as a national
industrial union in the metallurgical sector, rather than the automotive
sector, and could not, therefore, represent Han Young automobile workers
in the state of Baja California. The CAB cited FLL Article 360 in support
of this argument.
Contrary to the reasoning by the CAB that the election results were an
insufficient basis for determining the bargaining representative, the
Mexican NAO had previously informed the U.S. NAO that the Supreme Court of
Mexico had, in 1979, ruled that the representation election (recuento)
was the most effective way of determining the union preference of the
majority of workers in a workplace.(43) However, in a letter dated March 27,
1998, the Mexican NAO cited a 1993 Supreme Court decision that stated that
the representation election is not a sufficient basis to determine
representation rights as, in accordance with FLL Article 931, only those
workers physically present at the representation election are entitled to
vote. According to this decision, the majority of the votes cast for a
contesting union must correspond to a majority of the workers in the
workplace, less workers who are ineligible to vote, such as recent hires
and management employees. The court's decision did not address situations
in which neither union obtains the votes of a majority of the workers in
the workplace.
In the absence of a representation election, the only alternative
approach available to the workers of Han Young, according to the FLL and
from information provided by the Mexican NAO, would have been for the
workers to (1) disaffiliate from the CROC union; (2) seek affiliation to
STIMAHCS; and (3) petition the CAB for collective bargaining
representation. By following this procedure, however, the workers would be
vulnerable to dismissal from employment should the CROC invoke the
exclusion clause. Such dismissals would be legal and without prejudice to
the company.(44) Under this scenario, the workers would face a limited choice
of risking dismissal from employment or remaining with the CROC union.
In nullifying the October 6 election results, the CAB also decided that
STIMAHCS lacked the proper registration to represent workers at Han Young.
The CAB's decision, reversing its earlier recognition of STIMAHCS as a
registered union for the purpose of the representation election, seems
inexplicable. Mexican labor law requires that a union or union
organization be registered before the appropriate authorities, be they of
the Federal Government or the state government.(45) FLL Article 527 places a
number of industries, including the metal and steel industry, under the
jurisdiction of the Federal Government. Once registration is granted, the
registered organization is authorized to represent itself and its members
before state and Federal authorities. STIMAHCS was registered with the
Federal Government and, according to the express language of FLL Articles
368(46) and 374, should have been recognized as a registered union before the
Baja California CAB. Moreover, in arguing that the representation
election, in itself, was not sufficient to determine the majority union,
the CAB did not explain on what basis it chose to return represenation to
the CROC, which received fewer votes than STIMAHCS.
FLL Article 360 identifies the different kinds of unions that can be
established. These are craft, company, industrial, and national industrial
unions, and unions that include various crafts. There does not appear to
be a legal delineation of industrial jurisdiction among different
industrial unions. As a truck chassis welding operation, Han Young could
presumably be classified under either the automobile or metalworking
industries.
Moreover, the CAB verified STIMAHCS' credentials at the hearing held on
September 25 before allowing the representation vote, rejecting at that
time a challenge put forward by the CROC union that STIMAHCS lacked the
legal authority to represent maquiladora workers in the state of Baja
California. The decision of the CAB overturning the election result made
no mention of this earlier decision which allowed the vote to take place
and offered no explanation for the reversal.
On December 16, 1997, a second election took place, in part because the
Federal Government and the State Government of Baja California intervened
and negotiated a settlement between the parties.(47) The terms of the
settlement included the second representation election between STIMAHCS
and the CROC union and an agreement by both unions to abide by the results
of the election. The settlement also called for an end to all legal
proceedings, including withdrawal of the NAO petition, by the two unions
and an end to the inter-union conflict at the plant.(48) The CAB agreed to
grant registration to an independent union called the Industrial and
Commercial Workers Union "October 6" (Sindicato de
Trabajadores de la Industria y del Comercio "6 de Octubre").
It was the apparent intention of the workers for this union to eventually
supplant STIMAHCS as the collective bargaining representative at the
plant. Following the second representation victory by STIMAHCS, "October
6" was granted registration, and the appropriate certificate was
issued on January 12, 1998.
FLL Article 387 requires an employer to enter into a collective
bargaining agreement with the union in the establishment. If more than one
union exists in the workplace, the employer must negotiate with the union
that has representation rights (titularidad). Pablo Kang, Han
Young Human Resources Director, testified at the February 18 hearing that
he had not received official notice of the election results,(49) and that in
any event he believed that STIMAHCS enjoyed the support of only about 20
percent of the workers within the plant. When asked how he had arrived at
this figure, he replied that he had calculated the number from watching
protesters outside the factory gate on one occasion.(50) Though FLL Article
890 requires the CAB to immediately notify the parties of its decisions,
the employer was not officially notified of the results of the
representation election until March 2, 1998, although the outcome had been
common knowledge. FLL Article 399 requires that bargaining begin at least
sixty days prior to the expiration of the agreement that is in effect. The
current collective bargaining agreement in effect at Han Young is
scheduled to expire on May 22, 1998,(51) and negotiations should have begun,
therefore, on or about March 22, 1998. Until then, the employer was under
no legal obligation to negotiate the terms of a new agreement unless the
union initiated negotiations. STIMAHCS made such a request in mid-March.
According to the submitters, however, Han Young rejected the union's
demands and the negotiations have not progressed.
The submitters have informed the NAO that problems continue at the Han
Young plant, that the company has hired twenty-seven new workers, and
intends to hire additional workers, even if only for a limited period of
time, so as to allow for a new union election which will ensure that
STIMAHCS is voted out. If, in fact the company was attempting to influence
a future election, it could do so by hiring additional workers. Mexican
labor law makes no provision for a grace period during which challenges
for union representation rights may not take place.(52) At last report, a CTM
union has filed for a new representation election and the CAB has
scheduled a May 21, 1998, hearing to set a date. This will be the third
representation election held since October 6, 1997.
As of the date of this report, the workers at Han Young have obtained
recognition of their independent union, obtained representation rights for
STIMAHCS in their workplace, and gained reinstatement of the workers who
were dismissed for union organizing activities. The workers also
testified, however, that STIMAHCS affiliated workers continue to be
harassed and denied benefits available to workers not affiliated to
STIMAHCS and that eleven workers have been subjected to retaliatory
discharge for their union activities.
The irregularities that the Tijuana CAB permitted to take place during
the first representation election, its reasoning in not recognizing
STIMAHCS as the bargaining representative, and its delay in formally
notifying Han Young of the results of the December 16 representation
election, raise questions about its enforcement of those provisions of
Mexico's FLL that govern procedures for determining union representation.
These actions also raise questions about the impartiality of the CAB,
particularly with regard to its duty to enforce the provisions of the FLL
protecting workers from employer retaliation for the exercise of their
freedom of association rights, and from employer interference in the
establishment of a union.
B. Procedural Guarantees
Article 5(1) of the NAALC commits the Parties to ensure that labor
tribunal proceedings are fair, equitable and transparent. Article 5(1)(d)
obligates the Parties to ensure that such proceedings are not
unnecessarily complicated and do not entail unwarranted delays. Article
5(2)(b) requires that final decisions in labor proceedings be made
available without undue delay. Article 5(4) requires each Party to ensure
that its labor tribunals are impartial, independent, and do not have a
substantial interest in the outcome of the proceedings before it.
Submission 9702 raises the issue of compliance by Mexico with its
procedural obligations under Article 5 of the NAALC. Namely, the
submitters argue (1) that in permitting irregularities to occur during the
representation election in favor of the CROC union, the CAB demonstrated
that its proceedings are not fair and equitable, in violation of Article
5(1); (2) that in delaying the processing of workers' claims for
unjustified dismissal and postponing the September 3 hearing, the CAB
caused unwarranted delays in the case, in violation of Article 5(1)(d);
(3) that in failing to officially notify the parties to the representation
election of the outcome, the CAB failed to make available, without undue
delay, its final decision in the case, in violation of Article 5(2)(b);
and (4) that the failure to protect workers from dismissal for their union
activities, the sudden change in the presidency of the CAB, the delay in
certifying the election results, the earlier finding that STIMAHCS lacked
the proper registration, and other actions by the CAB, demonstrate that it
is not impartial and independent and is therefore in violation of Article
5(4).
1. Compliance with NAALC Articles 5(1) and 5(2)
Two hearings were held by the local CAB in accordance with its standard
procedures. At the first hearing on September 25 following STIMAHC's
petition for representation rights, the CAB reviewed the credentials of
the parties and ruled on their eligibility to participate in the
representation election. Another hearing was held on October 9, following
the representation election, at which the two parties to the election
challenged the validity of a number of each other's ballots. On October
16, the CAB declared that the proceedings were closed.
The submitters assert that during the September 25 meeting, the CROC
attempted to persuade the CAB to suspend the hearing on the basis of a
technicality and to suspend the proceedings on the basis that the CTM
intended to file for collective bargaining representation. According to
the submitters, the CAB seemed prepared to accede to this request and
refrained from doing so only after the workers protested loudly and
threatened to occupy the CAB.
In spite of the foregoing allegations, the proceedings conducted by the
CAB appear to have been consistent with the FLL as set out in FLL Articles
870-891. Access to the proceedings was restricted to the parties, but
minutes were kept and the results were printed and made available to the
parties, who made them available to the public. From these documents it is
clear that the parties were afforded the opportunity to present their
respective positions and submit the appropriate evidence. FLL Article 873
calls for a CAB hearing on conciliation, argument, and submission and
admissibility of evidence within fifteen days of the filing of the
petition for certification. The petition was filed on August 6, 1997,
logged in by the CAB on August 8, and the first hearing was scheduled for
September 3, 1997. The hearing date was subsequently postponed to
September 25 because of a clerical error, according to the CAB; in order
to afford the company and the CROC union more time to defeat STIMAHCS
according to the submitters. This resulted in a total period of
thirty-four days elapsed from the filing of the representation petition to
the first hearing. This was not an unreasonable delay. Finally, the record
indicates that these two proceedings before the CAB were fairly
straightforward and not unduly complicated and, therefore, in compliance
with Article 5(1)(d).
The matter of the workers' claims alleging unjustified dismissal became
moot after their reinstatement following the December 16 agreement.
Nevertheless, without intending to comment on the validity of the claims,
the period that elapsed in these cases was not excessive relative to the
time period that normally applies in CAB cases.(53)
FLL Articles 885-891 specify the time periods that may elapse from the
conclusion of the hearings and the issuance of a final award. The FLL
allows for up to thirty-three working days. In this case, the proceedings
were declared closed on October 16, 1997, and the decision was issued on
November 10, for an elapsed time of sixteen working days, well within the
time period prescribed by the FLL and, therefore, in compliance with
Article 5(2)(b).
The second representation election took place on December 16, 1997, and
STIMAHCS was informed on January 12 that it was the collective bargaining
representative. However, the CAB did not officially notify the employer of
this until March 2, 1998. FLL Article 890 states that the CAB will
immediately notify the parties of its decisions. The CAB's delay in
informing the parties of the results does not seem to conform to the FLL
language, nor with the language of NAALC Article 5(2)(b) that "[e]ach
Party shall provide that final decisions on the merits of the case in such
proceedings are . . . (b) made available without undue delay to the
parties to the proceedings and, consistent with its law, to the public . .
. ."(54)
The Parties to the NAALC have a duty to promote labor rights by
ensuring not only accessibility to tribunals but also that tribunals are
impartial, independent and fair in applying the law. It is difficult to
conceive of a legitimate reason why the CAB delayed until March 2 to
officially inform the parties of the January 12 finding confirming the
December 16 election result. This action by the CAB is troubling,
especially when viewed within the context of its earlier decision of
November 10 and the reasoning it provided for not recognizing STIMAHCS
after the October 6 election.
2. Compliance by Mexico with NAALC Article 5(4)
The NAO has reviewed and reported at length on Mexico's labor tribunals,
the CABs. All but one of the cases reviewed raised freedom of association
issues and the enforcement by the CABs of Mexico's laws protecting freedom
of association.(55) Several submissions explicitly raised the issue of
Mexico's obligations under NAALC Article 5 on procedural guarantees.(56) In
its report on Submission 940003, the NAO found that the allegations of
dismissal for union activity were plausible and that the workers involved
lacked the financial resources and faced other impediments to obtaining
impartial legal remedies. The NAO also found that workers were subjected
to excessive delays and denied registration for their union on hyper
technical grounds(57) and recommended ministerial consultations on the union
registration process. The consultations resulted in a number of
initiatives which produced a comprehensive examination of the
institutions, procedures, and laws that make up the basis of Mexico's
system of labor adjudication in the private sector.
It is especially noteworthy that, pursuant to the ministerial
consultations agreement, a panel of labor experts convened by the Mexican
Government made a number of recommendations which are relevant to the
instant submission specifically and, more broadly, to the functioning of
the local level CABs in general.(58) The panelists made several
recommendations, two of which are particularly relevant to the instant
submission:
- Registration of local unions should be issued by the state
Departments of Labor rather than the CABs. It was asserted that such a
change would take into account the purely administrative nature of
registering unions and avoid conflict of interest problems that often
arise within the local CABs.
- The law on union registration should be applied consistently. The
panel recommended that registration be granted to every applicant
complying with legal requirements and denied consistently to those that
fail to do so.
In its report on ministerial consultations on Submission No. 940003,
the U.S. NAO made a number of findings on the union registration process
in Mexico and the role of the CABs.(59) Of relevance to Submission No. 9702
are the following:
a. It is very difficult for workers to register an independent
union at the local level in Mexico. Independent union, as used here,
refers to a union not affiliated or aligned with any of the large labor
confederations in Mexico (CTM, CROC, CROM) which are allegedly aligned
with the dominant political party in Mexico, the PRI.(60)
b. The composition of the labor boards often complicates the
registration of an independent union. The CABs are hybrid
organizations that are administratively under the executive branch and
dependent on the executive branch for their funding. However, they also
fulfill a judicial role and, in the case of union registration, they
have an administrative function. The labor representative on the CAB
generally represents the incumbent or majority union, usually a CTM
affiliate. Therefore, at least one member of the CAB has a competing
interest with any independent union seeking registration.
c. Registration laws are not uniformly applied in every CAB
jurisdiction. There is considerable disagreement among Mexican
Government experts with respect to the proper application of some of the
provisions of union registration laws.(61) Different interpretations of the
law have been given on whether an existing union in the same workplace
precludes the registration of another union; the number of unions that
can co-exist in one workplace; and whether a CAB can correct
deficiencies in a union's petition for registration in advance of denial
of the petition, thereby providing an opportunity to cure the defect.
Different interpretations amongst government officials on union
registration requirements contribute to confusion on the part of workers
and their independent unions.
For a union to petition for representation rights, it must first be
registered. It was the Han Young workers' recognition of the problems and
difficulties in registering an independent union that induced them to
alter their strategy and decide to pursue representation with STIMAHCS
rather than the independent union with which they had begun their effort.
The difficulty in obtaining registration for an independent union is
widely recognized in Mexico and has been documented in research by
independent experts in the U.S. and Mexico as well as in NAO reports.(62) The
workers in the instant submission elected to pursue representation by
STIMAHCS, a union that was already registered. This procedure was, in
fact, recommended by Mexican officials during a seminar pursuant to the
ministerial consultations conducted in Submission No. 940003.(63)
3. ILO Convention 87
The submitters raised the issue of Mexico's compliance with ILO Conventions 87 and 98.
Convention 87, which Mexico has ratified, is most germane to this
submission. Explanations as to the scope and meaning of provisions of ILO
Conventions are found in the reports of the Committee of Experts on the
Application of Conventions and Recommendations (hereinafter the
Committee). These reports provide a basis by which to measure conformance
with ILO conventions by the parties and also provide a body of expert
information and opinion on major issues of industrial relations that are
raised and reviewed at the international level.
The ILO has addressed the issue of legal personality for workers' and
employers' organizations, the requirements for registration of unions, and
procedures for awarding representation. Article 7 of Convention 87 states:
[t]he acquisition of legal personality by workers' and
employers organizations, federations and confederations shall not be made
subject to conditions of such character as to restrict the application of
the provisions of Articles 2, 3, and 4 hereof.
Article 2 provides that workers and employers, "without
distinction whatsoever," have the right to form organizations of
their own choosing "without previous authorization." Article 3
provides that workers' and employers' organizations have the right to draw
up their own constitution and rules without interference by the
authorities. Article 4 protects workers' and employers' associations from
dissolution or suspension by administrative authorities.
In its 1994 General Survey, the Committee of Experts addressed
the right to establish organizations without previous authorization, and
commented on the application of union registration requirements in that
context, stating:
In many countries, registration is compulsory and is a
prerequisite for the normal functioning of an organization. The
formalities covered by the concept of "registration" vary
according to national legislation. In some cases, all that is required is
to deposit the organization's by-laws, possibly with details of the
officers and constituent meeting, to satisfy the registration authority
that the organization has complied with trade union legislation; in such
cases the competent authority does not normally have discretionary power.
In some other countries, however, legislation does not clearly define the
procedures of the formalities which must be observed or the reasons which
the competent authority may give for refusal, which may be tantamount to
requiring previous authorization.(64)
The Committee went on to note:
In some countries, legislation confers on the competent
authority a genuinely discretionary power to grant or reject a
registration request or to grant or withhold the approval required for the
establishment and functioning of an organization. In the Committee's view,
such provisions are tantamount to a requirement for previous authorization
which is not compatible with Article 2 of the Convention.(65)
The Committee also commented on the effect of lengthy and complicated
procedures and on the excessive use of discretionary authority, stating:
Problems of compatibility with the Convention also arise where
the registration procedure is long and complicated or when the
registration regulations are applied in a manner inconsistent with their
purpose and the competent administrative authorities make excessive use of
their discretionary powers and are encouraged to do so by the vagueness of
the relevant legislation. These factors may be a serious obstacle to the
establishment of organizations and may amount to a denial of the right of
workers and employers to establish organizations without previous
authorization.(66)
The Committee specifically addressed the matter of recognition of legal
personality and the requirement that it not restrict the provisions of
Articles 2, 3, and 4 of the Convention, stating:
Legislation is thus compatible with the terms of the
Convention if it automatically confers legal personality on the
organization in question at the time of establishment, be it without any
formalities being observed, when the by-laws are deposited, or following a
registration procedure or other formalities which are compatible with the
Convention. However, when legislation makes the acquisition of legal
personality a prerequisite for the existence and functioning of
organizations, the conditions for acquiring legal personality must not be
such that they amount to a de facto requirement for previous authorization
to establish an organization, which would be tantamount to calling into
question the application of Article 2 of the Convention. Legal personality
should not be denied to organizations once they have met legal
requirements.(67)
Registration of unions in Mexico is necessary for those organizations to
possess the legal personality to exercise their basic functions. The
application of inconsistent and imprecise criteria in the registration
process raises the possibility of a selective and arbitrary implementation
of the law in an effort to influence workers' choices on union
representation. The review of Submission 940003 and the various programs
conducted pursuant to ministerial consultations agreed to following that
submission, indicates that, whereas the registration of unions in Mexico
was intended to be a routine administrative function, this is not always
the case.
The Committee of Experts also addressed the concept of collective
bargaining representation and found that legislation that establishes the
concept of the most representative trade union and granting to that union
representation rights is not, in itself, "contrary to the principle
of freedom of association provided that certain conditions are met."(68)
The Committee, however, asserted that clear and precise criteria must be
followed in making the determination, stating:
recognizing the possibility of trade union pluralism does not
preclude granting certain rights and advantages to the most representative
organizations. However, the determination of the most representative
organization must be based on objective, pre-established and precise
criteria so as to avoid any possibility of bias or abuse . . . .(69)
C. Initiatives by the Government of Mexico
Previous consultations have shown that the Mexican Government
recognizes problems involving the effective implementation by the CABs of
its labor laws on freedom of association and is making efforts to address
them. Two initiatives of note have been undertaken by the Government of
Mexico to address problems of labor administration and to improve the
system for adjudicating disputes. These are the New Labor Culture and
the Program for Employment, Training and the Defense of Labor Rights:
1995-2000.
1. New Labor Culture
The NAO reported on the New Labor Culture (Nueva Cultura Laboral) in its Follow-up Report
on NAO Submission No. 940003.(70) The New Labor Culture resulted from efforts
by the Government of Mexico to improve labor-management cooperation,
competitiveness, and productivity. Following tripartite negotiations among
labor, management, and government representatives, a document entitled
Principles of the New Labor Culture (Principios de la Nueva Cultura
Laboral), was signed on August 13, 1996.
The Principles of the New Labor Culture does not have the effect of
law, but rather is a statement of objectives and principles. It calls upon
both labor and management to respect each other's rights and honor
respective obligations. The document addresses two matters of labor law
which were subjects of Submission No. 940003 and the subsequent
ministerial consultations: (1) union democracy; and (2) union
registration, including the lack of impartiality in the decisions of the
labor tribunals. Under the Principles of the New Labor Culture, unions
pledge to conduct their business in accordance with the law, to observe
the principle of freedom of association, and to conduct their elections in
a climate of harmony, respect and democracy. Further, both unions and
management call on the government to strengthen the system of labor
tribunals by assigning career judges, as opposed to the current practice
of assigning members of the executive branch, as the government
representatives to these bodies. The document calls for the labor
authorities to discharge their responsibilities in strict conformance with
the law, and in the case of adjudicating jurisdictional matters, to do so
quickly, completely, with justice, and impartially.
2. Program for Employment, Training and the Defense
of Labor Rights: 1995-2000
The Program for Employment, Training and the Defense of Labor Rights: 1995-2000 (Program de Empleo,
Capacitaci¢n y Defensa de los Derechos Laborales: 1995-2000) (hereinafter
the Program) is a five-year policy and planning document adopted by the
Secretariat of Labor and Social Welfare in 1995 and published in 1996.(71) The
Program is comprehensive and deals with employment, education, training,
productivity, health and safety, and workers' rights and labor justice.
In the background statement, the Program states that "strengthening
labor tribunals and improving the methods for preparing, selecting,
promoting and remunerating the judges, by establishing a judicial career
track, becomes a priority." It goes on to say: "[t]he fact that
the labor tribunals sometimes use inconsistent criteria in the enforcement
of the labor standards generates a lack of juridical certainty. Thus, it
is desirable to hold periodic full meetings of the local boards, as
established by the regulations, for the purpose of analyzing and setting
uniform criteria for interpreting and enforcing the legislation."(72)
The background statement of the Program addresses the registration of
unions and states "[t]he function of registering labor unions under
federal jurisdiction, federations and confederations, as well as taking
note of changes in their leadership committees, fluctuations in the number
of their members and modifications in their by-laws; these are all
significant activities for which the STPS is responsible."(73) It further
provides that "[t]he powers of the labor authorities in this matter
are strictly delineated by the legislation in force. The procedures for
registering and updating labor organizations, since they are mainly
administrative, are not steps for settling disputes between unions; on the
contrary, they are and ought to remain procedures intended to offer
juridical security to labor organizations and the harmonious development
of labor relations."(74) It concludes by stating "[t]he service
involved in the registration function should be provided as efficiently
and effectively as possible. Therefore, the analysis of the documents
[submitted for registration], whereby compliance with the requirements of
the Law is accredited, should be performed with the greatest legal
precision, but also quickly, in order to guarantee both the full legal
validity of the resolutions and their timely issuance."(75)
In the Program, the Government sets forth guidelines for action, which
include:
- the establishment of an actuarial control system for the issuance of
notifications and summons;
- improving and expediting procedures for the presentation of evidence
and determining its admissibility;
- holding periodic and obligatory meetings of the boards, so they can
adopt uniform criteria in the granting of awards, in accordance with the
Law;
- improvement in the professional level of the staff of the Federal
CABs though the establishment of a judicial career track to deal with
the increased complexity of the matters submitted to the Boards;
- modernization of the systems for recruiting and selecting both legal
and administrative personnel, in order to improve staff and retain
highly qualified personnel, including the selection of personnel based
on their employment history as well as the results of competitive
examinations.(76)
The NAO has observed that the Government of Mexico has begun to
implement some of these programs. A registry of all officially registered
unions has been prepared and is available on the website of the
Secretariat of Labor and Social Welfare. Several new Federal CABs have
been established, including one in Tijuana. These measures are directed
toward achieving a consistent and uniform application of the law by the
CABs. If fully, implemented, these steps, among others, would
significantly reduce the possibility of a selective application of the law
and charges of bias and manipulation of the process.
Han Young's apparent efforts to influence the workers' union
organization efforts through coercion, intimidation, and other means,
appear well substantiated from the testimony and information available to
the NAO. While this behavior on the part of the company is troubling, for
the purposes of this review under the NAALC, the U.S. NAO s concern
centers around allegations that the local labor authorities may not have
acted in a manner consistent with the Procedural Guarantees on
impartiality and independence pursuant to Article 5 of the NAALC.
The results of previous submissions and the Government of Mexico's own
efforts to strengthen the professionalism and capabilities of its CABs
seem to substantiate the NAO's basis for concern that the actions by the
Tijuana CAB may be inconsistent with the FLL. Registration, which is
supposed to be a routine administrative transaction, is sometimes withheld
in a manner which grants the administrative authorities (CABs) control
over the right of unions to exist. Though the law requires that
registration be granted automatically in the absence of any action by the
CABs, this is not always the case and unions that lack registration lack
the legal status to exist. As far as the NAO has been able to determine,
the instant case represents only the second time that an independent union
has been registered in the entire maquiladora sector.(77) It also appears,
from the instant submission, that union representation rights were
initially awarded on the basis of criteria that were not impartial and
transparent and that this was prevented from occurring only by the
intervention of the Federal and state governments. Finally, it appears
that the workers of Han Young may be required to defend, once again, their
hard-won representation rights in a third representation election.
It is evident that the Federal Government of Mexico is aware of the
problems associated with some of the state CABs and has initiated efforts
to achieve improved compliance with the law by the appropriate
authorities. Unfortunately, it is further evident from the instant
submission, that in spite of serious efforts on the part of Mexican
Federal labor authorities, independent unions continue to experience
difficulty gaining the authority and ability to exist and function as
provided for under the Mexican Constitution and the FLL.
VI. FINDINGS
This review indicates that a group of 120 workers at Han Young obtained
union representation only after extensive litigation, intervention by the
Mexican Federal labor authorities, two representation elections which they
won, international public attention, and extensive media coverage. It is
worth noting that until the instant case, from the information available
to the NAO, not one independent union had been registered or had obtained
collective bargaining representation rights in Tijuana and only one other
exists in the entire maquiladora sector.(78) This has occurred despite the
provisions of the Mexican Constitution, the Federal Labor Law, the North
American Agreement on Labor Cooperation, and Conventions 87 and 98 of the
International Labor Organization that are intended to protect this right.
The workers in question have expressed their union preference through two
representation elections, strikes, and fasts, and in the face of
determined opposition from the company, including intimidation, threats,
and dismissals. Additionally, serious questions have been raised as to the
legal decisions of the Tijuana CAB responsible for enforcing Mexico's laws
on the freedom of association rights of workers. It also appears that the
workers may be required to undergo still another representation election
to demonstrate their union preference.
The NAO makes the following findings:
1. Mexico's Constitution and Federal laws protect the freedom of
association of workers to organize and join the unions of their choice.
2. The proceedings conducted by the Tijuana CAB in the instant
submission were transparent, took place expeditiously, and appear
consistent with Mexican law and NAALC Articles 5(1)(b) and 5(1)(d).
3. Provisions of the Federal Labor Law on representation elections in
determining the majority union are unclear. The U.S. NAO has received
conflicting information on this matter. The actions of the Tijuana CAB,
including the delay in informing the parties of its decisions in the case,
the rationale of its decision not to certify the first representation
election, and irregularities in the conduct of the first representation
election, appear inconsistent with Mexico's obligations under Articles
5(1), 5(2)(b) and 5(4) of the NAALC.
4. The placement, by the Tijuana CAB, of obstacles to the ability of
workers to exercise their right to freedom of association, through the
application of inconsistent and imprecise criteria and standards for union
registration and for determining union representation, is not consistent
with Mexico's obligation to effectively enforce its labor laws on freedom
of association in accordance with Article 3 of the NAALC.
5. The Government of Mexico apparently recognizes that a number of
shortcomings exist in the labor tribunal system. This is demonstrated by
the Federal Government's initiatives to improve the performance of the
Federal level CABs and the recommendations of its independent experts to
implement similar changes in the local CABs. However, the actions by the
Tijuana CAB demonstrate that independent unions can continue to experience
difficulty in obtaining registration and collective bargaining rights.
Given the above, ministerial level consultations on the implementation
of the various recommendations emanating from the Government of Mexico,
such as the Principles of the New Labor Culture and the Program for
Employment: 1995-2000, would further the objectives of the NAALC.
Consultations should discuss any strategies being considered by the
Government of Mexico to address these issues and in particular those
strategies designed to address problems such as those with the Tijuana CAB
in Baja California, as well as other measures to ensure that workers'
freedom of association and right to bargain collectively are protected.
VII. Recommendation
Accordingly, the NAO recommends ministerial consultations on these
matters pursuant to Article 22 of the NAALC.
Irasema Garza
Secretary
U.S. National Administrative Office
April 28, 1998
Based on the foregoing report, I accept the NAO's recommendation to
request ministerial consultations under Article 22 of the NAALC on the
issues concerning union registration and representation raised in
Submission No. 9702.
Alexis M. Herman
Secretary of Labor
ENDNOTES
1. 59 Fed. Reg. 16660-16662 (1994).
2. The submitters allege that Han Young induced recently hired workers to perjure themselves before CAB officials when asked for their date of hire.
3. About 85% of organized labor in Mexico is affiliated to the Labor Congress (Congreso del Trabajo - CT). The CTM, the CROC, the CROM and most of the other thirty-five confederations, federations, and national unions affiliated to the CT are closely associated with the PRI. See U.S. Department of Labor, Bureau of International Labor Affairs, Foreign Labor Trends: Mexico, 1995-1996, (Prepared by American Embassy, Mexico City), p.14.
4. Mexican labor experts consider union strength in Baja California to be minimal, and the established unions in Tijuana are considered, for the most part, to be "protection" unions which are used by employers to exclude other, possibly more militant unions,from the workplace. See Toledo, Enrique de la Garza, "Industrial Democracy, Total Quality and Mexico's Changing Labor Relations," in Regional Integration and Industrial
Relations in North America, eds. Cook, Maria Lorena and Katz, Harry C., (Ithaca, New York, ILR Press, New York State School of Industrial and Labor Relations, Cornell University, 1994). p. 26. See also Quintero, Cirila "Reestructuraci¢n Sindical en las Maquiladoras Mexicanas, 1970-1990", (Ph.D. diss., University of the Northern Frontier,1992) pp. 308-312. See also Carillo, Jorge V., "Maquiladoras and Labor Relations," in
Unions, Workers, and the State in Mexico, ed. Kevin J. Middlebrook, (Center for U.S.-Mexican Studies, University of California, San Diego 1991), p. 229.
5. Literally, "title" to the collective bargaining agreement.
6. The Case of Han Young de Mexico, S.A. de C.V., in Tijuana, Mexico: Submission to the United States National Administrative Office (hereinafter NAO Submission No.9702), U.S. Department of Labor, Bureau of International Labor Affairs, National Administrative Office, (1997) p. 18, and Exhibit RR (affidavit from two workers).
7. The submitters assert that the CROC and the CTM are working together to defeat the efforts of STIMAHCS and the independent union.
8. Letter from National Administrative Office of Mexico (March 30, 1998).
9. The NAO began monitoring developments in Han Young in July 1997, and had received a number of inquiries from the public on the situation.
10. On file with the U.S. National Administrative Office.
11. On file with the U.S. National Administrative Office.
12. Letter from Ho Young Lee, President of Han Young de Mexico, S.A. de C.V., to the U.S. National Administrative Office, (February 12, 1998), (on file with the U.S. National Administrative Office).
13. Letter from Ted Chung, President, Hyundai Precision America, (December 29,1997), Subject: Response to your December 12, 1997 Letter, (on file with the U.S.National Administrative Office). The submitters have informed the NAO that Hyundai has attempted to play a constructive role in resolving the Han Young case.
14. 63 Fed. Reg. 2266-2267 (1998).
15. On file with the U.S. National Administrative Office.
16. Political Constitution of the United Mexican States (hereinafter Constitution of Mexico), Article 19.
17. Constitution of Mexico, Article 123, Paragraph XXII.
18. Federal Labor Law, (as amended through December, 1995) (Ormond Beach,Florida, Foreign Tax Law Publishers, Inc., trans.). This English translation of the FLL is used throughout this report.
19. The Federal Labor Law (FLL) is national in scope. Enforcement and
implementation is shared between Federal authorities and state governments.
20. U.S. Department of Labor, Bureau of International Labor Affairs, Seminar on Union Registration and Certification Procedures, San Antonio, Texas, November 8, 1995, p.47. This seminar was the second in a series of three such programs conducted pursuant to an Agreement on Ministerial Consultations on NAO Submission No.940003.
21. Foreign Labor Trends: Mexico, 1995-1996, p. 14.
22. FLL Article 604 defines the scope of jurisdiction of the CABs.
23. Program for Employment, Training and the Defense of Labor Rights: 1995-2000(Programa de Empleo, Capacitaci¢n y Defensa de los Derechos Laborales: 1995-2000), Secretariat of Labor and Social Welfare, Mexico (1996), p. 79.
24. See U.S. Department of Labor, Bureau of International Labor Affairs, U.S. National Administrative Office, Public Report of Review of Submission 940003, pp. 23-24 and 30-32. See also U.S. Department of Labor, Bureau of International Labor Affairs, U.S. National Administrative Office, Report on Ministerial Consultations on NAO Submission
#940003, pp. 13-14, for a detailed account on union registration in Mexico.
25. FLL Article 365.
26. FLL Article 366.
27. In a letter to the U.S. National Administrative Office (February 3, 1995) in response to a letter from the U.S. National Administrative Office (January 9, 1995) requesting publicly available information related to Submissions No. 940003 and 940004 (on file with the U.S. National Administrative Office), the Mexican NAO stated that in a 1979
decision, the Supreme Court of Mexico had determined that the representation election was the most effective way of determining union representation in these cases. In a subsequent letter dated March 27, 1998, the Mexican NAO provided information on later decisions by the Mexican Supreme Court indicating that a majority of all workers in the establishment, not simply those voting, is necessary to obtain collective bargaining representation.
.
28. U.S. Department of Labor, Bureau of International Labor Affairs, National Administrative Office, Public Report of Review of Submission No. 9601, (1997) pp. 25-26.
29. International Labour Conference, 81st Session, Report III (Part 4B), Freedom of Association and Collective Bargaining (Geneva, International Labour Office, 1994), par.97.
30. Ibid., par. 98.
31. Ibid., par. 104.
32. Ibid., par. 231-232.
33. NAO Submission No. 9702, p. 8.
34. Ibid., p. 12.
35. Ibid., p. 18.
36. Public Hearing on Submission No. 9702, pp. 76, 89, 91, 93-94, 98-100, 101-102,162-163.
37. Public Hearing on Submission No. 9702, pp. 49-50, 83-84, 108-110.
38. In Mexico this term usually refers to high level administrative employees.
39. Notwithstanding the law, Mr. Ho Young Lee, the President of Han Young, stated in his letter of February 12, 1998, to the U.S. NAO, that he thought workers hired after that date should be allowed to vote. (Letter on file with the U.S. NAO.)
40. Public Hearing on Submission No. 9702, pp. 108-110.
41. Calbreath, Dean, "Workers Rebel at Maquiladora," The San Diego Tribune, 7 October, 1997, p. 1; Nagel, John, "Fraud Charged in Historic' Vote at Maquiladora Plant in Mexico," Daily Labor Report, Bureau of National Affairs, 8 October, 1997, pp. A6-A7; Bacon, David, "Independent Union Defeats Old Guard at Tijuana Plant," San Francisco Chronicle, 8 October, 1997, pp. A8-A10.
42. Conciliation and Arbitration Board, Tijuana, Baja California, Judgement on Labor Proceeding No. 1722/97-1, November 10, 1997, (on file with the U.S. National Administrative Office).
43. Letter from the National Administrative Office of Mexico (February 3, 1995).
44. Letter from the National Administrative Office of Mexico (February 3, 1995).
45. At the September 25 hearing, the CAB President dismissed the argument of the CROC challenging the credentials of STIMAHCS to represent workers in Baja California on this ground, citing: "Article 374, Paragraph III of the Federal Labor Law, which establishes that legally constituted unions shall have legal personality before all the authorities . . . ."
46. FLL Article 368 states: "[r]egistration of the trade union and its board of directors shall take effect for the purposes of transactions with all authorities once it has been confirmed by the Ministry of Labor and Social Welfare or by the local Conciliation and Arbitration Boards."
47. Memorandum from the National Administrative Office of Mexico to the U.S.National Administrative Office (December 19, 1997), Subject: Han Young (on file with the U.S. National Administrative Office).
48. Agreement dated December 16, 1997, signed by representatives of STIMAHCS,CROC, the Secretariat of Labor and Social Welfare, and the State Government (on file with the U.S. National Administrative Office).
49. In a letter dated March 30, 1998, the Mexican NAO stated that the formal notification was made on March 2. The NAO stated further that it was the responsibility of STIMAHCS to request that the notification be made. FLL Article 890, however, states that the CAB will notify the parties to a dispute immediately of its decision.
50. Public Hearing on Submission No. 9702, p. 35.
51. The agreement is actually for an indefinite period, but FLL Article 399 allows for the renegotiation of an indefinite period agreement after two years from the original signing at the request of one of the parties.
52. Public Hearing on Submission No. 9702, pp. 52-53, 124-125.
53. See Middlebrook, Kevin J., and Quintero, Cirila Ramirez, Conflict Resolution in the Mexican Labor Courts: An Examination of Local Conciliation and Arbitration Boards in Chihuahua and Tamaulipas, prepared for the National Administrative Office, U.S. Department of Labor, (1996).
54. On April 17, 1998, the Mexican NAO asserted that the CABs are not obligated to make an immediate notification to the parties of their decisions in these types of cases. The Mexican NAO cited FLL Article 742 which lists the types of decisions that require
immediate notification, and which does not include the certification of elections. However, the Mexican NAO did not support this argument with cases or interpretations by the Mexican courts and could not explain why the plain meaning of FLL 890 does not apply.
55. The sudden resignation of the President of the Tijuana CAB in the instant submission, ostensibly at the request of the Governor of Baja California, who allegedly responded to pressure from the CROC, raises troubling questions as to the workings of the tribunal, especially following the subsequent decision of the CAB nullifying the outcome of the first representation election. This latter decision essentially reversed
the CAB's earlier decision allowing the election to proceed without providing an explanation and, apparently, without reviewing new information or evidence. The NAO cannot confirm these allegations. However, the NAO's concern with respect to this issue stems in part from a broader and ongoing consideration of the various submissions presented before the U.S. NAO which raised issues concerning the operation of the CABs.
56. The enforcement of Mexican labor law on freedom of association by labor tribunals was raised in NAO Submissions 940001, 940002, 940003, and 940004. Submissions 9601, 9602, and 9703 (currently under review), as well as the instant submission, specifically raised the issue of Mexico's compliance with its obligations under NAALC Article 5(4) on the impartiality of its labor tribunals.
57. For example, the failure to submit duplicate copies of required documentation.
58. U.S. Department of Labor, Bureau of International Labor Affairs, U.S. National Administrative Office, Report on Ministerial Consultations on NAO Submission #940003 (1996).
59. Ibid.
60. At a seminar held on September 13-14, 1995, in Mexico City, a Mexican government panelist suggested that workers resolve this problem by affiliating to an already existing union organization and then seeking collective bargaining representation rights. This was the approach of the Han Young workers when they sought to be represented by STIMAHCS.
61. For example, see the discussions on this matter that took place at the seminar held in Mexico City on September 13-14 and a subsequent seminar held in San Antonio, San Antonio, Texas, on November 8-9, 1995.
62. See Middlebrook, (ed.), Unions, Workers, and the State in Mexico. See also Cook and Katz,(eds.), Regional Integration and Industrial Relations in North America.
63. Report on Ministerial Consultations on NAO Submission #940003, pp. 9-10. In this submission, workers' efforts to register an independent union had been unsuccessful,though they had pursued a number of available remedies through the local CAB and the courts. It was suggested, by Mexican authorities, that by joining with a union organization that already possessed registration, workers would avoid this obstacle and
could then proceed directly to seeking representation rights.
64. ILO, Freedom of Association and Collective Bargaining, par. 73.
65. Ibid., par. 74.
66. Ibid., par. 75.
67. Ibid., par. 76.
68. Ibid., par. 97.
69. International Labour Office, Governing Body, 300th Report of the Committee of Freedom of Association, Case No. 1844 (Mexico), 1995, Paragraph 241.
70. U.S. Department of Labor, Bureau of International Labor Affairs, U.S. National Administrative Office, Follow-up Report: NAO Submission #940003 (December 4, 1996).
71. Poder Ejecutivo Federal, Secretar¡a del Trabajo y Previsi¢n Social, Programa de Empleo, Capacitaci¢n y Defensa de los Derechos Laborales: 1995-2000, trans. U.S.Department of State, (Mexico, 1996).
72. Ibid., p. 78.
73. Ibid., p. 84.
74. Ibid.
75. Ibid., p. 85.
76. Ibid., pp. 89-90. It should be noted that the Program is targeted toward improving those elements of labor and industrial relations administration and adjudication that are within the jurisdiction of the Federal Government. Under Mexico's system of labor law, one national law, the FLL, governs labor matters in the private sector, whereas the administration and implementation of the law is shared between
the Federal Government and the state authorities. Local CABs are under the
jurisdiction of the states and adjudicate significantly more cases than do the Federal CABs..
77. The first being a union organized at the Maxi-Switch Company in Cananea, Sonora. NAO Submission No. 9602 raised the issue of the denial of registration to this union by the local CAB. The CAB later reversed its decision and granted registration to the union, prompting the submitters to withdraw the submission. A copy of the submission is available from the U.S. NAO.
78. According to the National Institute for Statistics, Geography, and Information (Instituto Nacional de Estad¡stica, Geograf¡a e Inform tica), as of December, 1997, there were 2,867 maquiladoras employing 938,438 workers in operation in Mexico. Of these, 954 plants employing 199,131 workers were located in Baja California.