Definitive Report - REPORT_NO324, March 2001

CASE_NUMBER 2062 (Argentina) - COMPLAINT_DATE: 24-AUG-99 - Closed

Allegations: Anti-union transfers and dismissals

1. 105. The complaint is contained in communications dated 24 August, 29 October and 9 November 1999 from the Staff Association of the University of Buenos Aires (APUBA). The Government replied in a communication dated 18 January 2001.
2. 106. Argentina has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 107. In its communication dated 24 August 1999, the Staff Association of the University of Buenos Aires (APUBA) alleges that, in a context of anti-union and political persecution and an atmosphere of dispute between non-teaching staff and their representatives, on the one hand, and the authorities of the Faculty of Architecture, Design and Town Planning of the University of Buenos Aires (FADU-UNBA), on the other, administrative proceedings were instituted on 4 November 1997 in respect of the transfer of Ms. Alicia Rosa Di Grazia, a trade unionist who was working in the kindergarten while simultaneously serving as secretary in charge of the records of the Staff Committee. Although she took the matter to court, there has been no final judicial decision to date.
2. 108. Moreover, deterioration in the work situation prompted the Workers’ Assembly to declare a 24-hour stoppage of work on 31 August 1998. Around that same period, the Dean of the Faculty had ordered the institution of two administrative proceedings, on 23 June and 18 August 1998 respectively, against Mr. Carlos Guillermo Pelloli, a trade unionist and member of the Staff Committee, on the grounds of “sexual harassment”. On 17 September 1998, after a number of irregularities, the trade unionist was transferred, as a preventive measure, and was prohibited from entering the Faculty building. The complainant points out that Mr. Pelloli had made accusations of corruption and of irregularities being committed within the Faculty. In August 1998, further administrative proceedings were instituted in respect of the trade union officer on the grounds that a student of architecture, who was also a member of the Faculty’s non-teaching staff, had been enrolled in courses of study without observing the course requirements. The complainant states that the Faculty authorities have not complied with the first-instance ruling handed down in December 1998, ordering that Mr. Pelloli be immediately reinstated in his position, or the judgement of the National Labour Appeal Court confirming the first?instance ruling and thus rendering that ruling final and enforceable.
3. 109. The complainant also alleges that the Faculty authorities acted to discredit and prejudice Ms. Delia Casal, Delegate-General of the Staff Committee, by instituting administrative proceedings that led to her transfer in violation of her trade union rights, and by attempting to implicate fellow trade unionist Mr. Carlos Pelloli and Ms. Elsa Casal, a member of the Faculty’s non-teaching staff and the sister of trade unionist Ms. Delia Casal, in the alleged acts (illicit transfer of Faculty documents). The legal action brought by Ms. Delia Casal was still pending at the time the complainant sent its first communication.
4. 110. In its communications dated 29 October and 9 November 1999, the complainant states that pursuant to a decision in August 1999 of the Dean of the Faculty of Architecture, Ms. Elsa Casal was suspended and Ms. Delia Casal was relieved of her duties (the question of the application of sanctions being deferred until the end of the period of trade union immunity). The courts of first and second instance later ruled in favour of Ms. Delia Casal ordering her reinstatement, but the university authorities have refused to comply with the order. The courts of first and second instance ruled against trade unionist Ms. Alicia Rosa Di Grazia; she, therefore, lodged a special appeal with the Supreme Court without, however, being authorized to do so by the National Court of Appeal, which regards this as contrary to the provisions of ILO Conventions. The complainant encloses the relevant rulings.

B. The Government’s reply

1. 111. In its communication of 18 January 2001, the Government forwards a communication dated 16 November 2000 from the Faculty of Architecture, Design and Town Planning of the University of Buenos Aires, in which the Faculty states that the complainant, in order to evade an analysis of the three proceedings in which it is involved and in a final and desperate move to defend its position before the Committee, is attempting to put forward a list of supposed “victims” of anti-union and ideological harassment. The complainant thus describes an imaginary authoritative regime, omitting the fact that it is referring to an institution of higher education whose authorities are voted in once every four years by the institution’s three constituent bodies (students, graduates and teaching staff). It also neglects to mention that the UBA’s highest authority is the University Assembly, which is open to all members; that the Rector is elected from among those members; and that this procedure has been strictly followed since the restoration of democracy in the country. It further refers to episodes in the university’s institutional life, all of which occurred in accordance with the UBA’s statutory framework, adding value judgements and putting forward subjective and biased views on the subject.
2. 112. According to the Faculty of Architecture, the complainant distorts the purpose of the examination (auditoría) and inquiry proceedings qualifying them as persecution whereas these are statutory mechanisms for supervising and investigating the functioning of administrative and academic activity. Herein lies the heart of the matter, as the complainant evades an analysis of the proceedings initiated to investigate complaints of irregularities implicating the appellants. Examination proceedings are an institutional obligation in the event of a presumed irregularity, designed to permit investigation of the facts, establish responsibilities and apply whatever sanctions may be required. Instead of trying at least to challenge the validity of the investigations on the basis of an analysis of the proceedings and the merits of the cases, the complainant claims that the investigations were conducted in an arbitrary manner, with the aim of persecuting those concerned. The proceedings, which were opened in an appropriate manner, were as follows:
   • – In File No. 253,941, one of Mr. Pelloli’s subordinates accuses him of sexual harassment. There is so little suspicion of connivance on the part of the said subordinate with Mr. Pelloli’s “harassers” that her name is not even mentioned in the complaint under examination. The fact is, however, that the young Ms. Jessica Marcus’ accusation led to an investigation with unexpected consequences. Not only was the alleged act established, but it also came to light that, in his position as director of student management, Mr. Pelloli had behaved in a similar manner towards other female employees and that, through his bizarre and arbitrary behaviour, he instituted a reign of terror over his staff. A further fact that the written statement omits to mention is that up to that point Mr. Pelloli enjoyed excellent relations with and the full confidence of the Faculty authorities. He now accuses those same authorities of anti-union persecution, incidentally, after being proved guilty of sexual harassment; neither the proceedings nor the statement signed by him indicate any real attempt to defend himself except through the theory of conspiracy against him. The Faculty takes pride in having complied with the statutory obligation of investigating – without prejudice or being subjected to any form of manipulation – a complaint filed by a young administrative employee against a member of the university’s professional staff (with a bachelor’s degree in sociology) holding the post of director. In reply to the allegation, a copy of the full contents of File No. 235,941 was enclosed with the Government’s reply. The previous investigation brought another irregularity to light: Mr. Pelloli was strongly suspected of having supplied his personal password for accessing the enrolment procedure to former employee Mr. Jorge Cuesta (who was also a regular student in the Faculty of Architecture), thus enabling the latter to enrol, against the regulations, in degree courses of study. The facts were established in this investigation (File No. 236,252) as well, and today Mr. Jorge Cuesta is no longer a student or an employee of the university; the statement fails to mention this, perhaps because Mr. Jorge Cuesta did not hold any trade union office and there was therefore no way that the persecution theory would stand up as far as he was concerned. In reply to the allegation, a copy of the full contents of File No. 236,252 was enclosed with the Government’s reply.
   • – As the abovementioned proceedings were under way, a complaint was made that documents had been removed from the student management department. This was investigated separately, and in this instance as well those responsible were identified and the facts proven. It was thus established that employee Ms. Mónica Blengini, and Mr. Jorge Cuesta (the employee-student given favourable treatment by Mr. Pelloli against university regulations), Ms. Delia Casal and Ms. Elsa Casal (both of them sisters-in-law of Mr. Pelloli) had participated, to varying degrees and as accessories, in the removal of three boxes of documents (including public instruments) belonging to the Faculty’s student management department and in their transfer to the premises of the Faculty’s non-teaching mutual association of which Mr. Pelloli was Chairperson. Apart from this evident accumulation of power and nepotism there exists a strong presumption – though no irrefutable evidence – of his involvement as the instigator of the above acts. The complaint lodged by the complainant does not analyse the merits of the case and puts forward the persecution theory once again. The evidence of yet another extremely serious instance of misconduct was so overwhelming, however, that all the tactics aimed at confusing and obstructing the proceedings (the preferred strategy of the defence led by lawyer Ms. Norma Casal, Ms. Delia and Ms. Elsa Casal’s sister and wife of Mr. Pelloli) failed in this case as well. In reply to the allegation a copy of the full contents of File No. 236,467 was forwarded; this provides a detailed list of the documents removed from the student management department and found in the premises of the non-teaching staff mutual association.
   • – In File No. 234,770/97 pertaining to employee Ms. Alicia Rosa Di Grazia, the defence adopts the same diversionary tactic. Indeed, there is no mention of the object of the inquiry, but a description of the situation and an appraisal of the running of the kindergarten where Ms. Di Grazia was working; this has nothing to do with the investigation into the administrative employee’s wrongful management of funds. Although the facts were established once again, it should be pointed out that in Ms. Di Grazia’s case, the ruling was as mild as possible under the circumstances and the relevant regulations.
3. 113. In conclusion, the Faculty states that there can be no greater or more convincing evidence for shattering the image of the persecuted worker which these individuals are trying to build for themselves than the opinions, feelings and judgements expressed about Mr. Pelloli by his own subordinates. These views highlight the despotic manner in which he ran the student management department (of which he was the “boss” supported by a system of loyalties founded on corruption and family ties) and the domination that he exercised through fear over all those who did not satisfy his often incomprehensible demands. A reading of the documents (especially File No. 235,941 pertaining to sexual harassment) shows Mr. Carlos Pelloli to be a harasser who, when the time comes to face a charge, shirks his responsibilities by claiming to be a victim of persecution, securing the assistance, as accessories, of his sisters-in-law and subordinates Ms. Delia and Ms. Elsa Casal.

C. The Committee’s conclusions

1. 114. The Committee notes that, in the present case, the complainant alleges on different dates and in an atmosphere of anti-union persecution the transfer of three trade unionists (Mr. Carlos Pelloli, Ms. Delia Casal and Ms. Alicia Rosa Di Grazia) and the suspension of one worker, Ms. Elsa Casal. The Government has forwarded the observations submitted by the Faculty of Architecture of the University of Buenos Aires in which the three trade unionists are declared guilty on the evidence of administrative proceedings, of serious misconduct, namely: sexual harassment (Mr. Carlos Pelloli); removal of three boxes of documents, including public instruments, from the Faculty premises (Ms. Delia Casal); and wrongful management of funds (Ms. Alicia Rosa Di Grazia). The administrative proceedings regarding the worker Ms. Elsa Casal, who was not a trade unionist, concluded that she was an accessory in the aforementioned removal of documents.
2. 115. The Committee notes that, in view of the fact that Mr. Carlos Pelloli and Ms. Delia Casal had been transferred without the formal requirements of judicial authorization stipulated by the legislation in the case of trade unionists being applied, the judicial authority ordered their reinstatement without considering the acts of which they were accused. However, given that both trade unionists were found guilty of serious misconduct, the Committee will not continue its examination of the allegations in question.
3. 116. Finally, the Committee takes note of the fact that the courts of first and second instance ruled against trade unionist Ms. Alicia Rosa Di Grazia.

The Committee's recommendations

1. 117. In the light of its foregoing conclusions, the Committee invites the Governing Body to decide that this case does not call for further examination.