Definitive Report - Report No 360, June 2011

Case No 2774 (Mexico) - Complaint date: 22-MAR-10 - Closed

Allegations: Anti-union dismissals at the Potosí Glassworks Company and failure of the authorities to take appropriate action

1. 878. The complaint was presented in a communication from the Single Trade Union of Workers of the Potosí Glassworks Company (SUTEIVP) dated 22 March 2010. The International Federation of Chemical, Energy, Mine and General Workers’ Unions (ICEM) associated itself with the complaint in a communication dated 6 May 2011.
2. 879. The Government sent its observations in a communication dated 2 March 2011.
3. 880. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 881. In its communication dated 22 March 2010, the SUTEIVP alleges that on 19 January 2008 its Secretary-General presented the competent authority with a list of demands and notice of strike action against the Potosí Glassworks Company (Industria Vidriera del Potosí, SA de CV), in order to obtain compensation for its violations of the collective labour agreement entered into with the company. The complainant organization adds that since 26 January 2008, the company has dismissed 207 employees, 14 of whom were members of the union’s executive board or of its vigilance and justice committee, with no legal justification whatsoever. Thereupon, the competent authorities declared publicly that the company was entitled to dismiss whoever it wished. The trade union and its dismissed members accordingly appealed to the relevant juridical authorities to defend their rights.
2. 882. According to the complainant organization, the Secretariat of Labour and Social Welfare of the government of the State of San Luis Potosí (STPS-SLP) failed to take appropriate measures in defence of the rights guaranteed under ILO Conventions Nos 87 and 135, and publicly justified the dismissal of hundreds of workers, including union officials. It claims that this is part of a series of measures aimed at depriving the workers of union representation, which is why the company, under the pretence of taking administrative action, has dismissed members of the union’s executive board, who are recognized as such by the authorities. By failing or refusing to take action in recognition of this basic right, the authorities responsible for the administration of justice in labour matters have left the members of the SUTEIVP without any means of defence.
3. 883. The complainant organization believes that the company’s measures are its response to a series of steps taken fully within its legal rights by the union, such as its notice of strike action to demand the revision of the collective agreement.

B. The Government’s reply

1. 884. In its communication dated 2 March 2011, the Government states that, though the SUTEIVP makes general allegations concerning violations by the STPS-SLP of the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Workers’ Representatives Convention, 1971 (No. 135), it does not relate the specific violations to the provisions of the Conventions, or does it explain what they consist of, which makes it difficult to examine the matter properly.
2. 885. While the Potosí Glassworks Company is domiciled in the city of San Luis Potosí, the labour jurisdiction by which it is bound is federal, by virtue of article 123/XXXI/20(a) of the Mexican Constitution. The STPS-SLP thus has no jurisdiction over labour disputes between the company and its workers. The Government concludes that the SUTEIVP’s complaint against that authority has no juridical foundation.
3. 886. The Government observes, however, that the STPS-SLP has made its mediation and conciliation services available to the federal labour authorities, albeit merely by way of offering suggestions and serving as a safeguard for the parties to the dispute, in order to maintain stability in the State in terms of industrial relations. The Government adds that the registration of the SUTEIVP’s executive board on the basis of which it claims accreditation lapsed on 4 August 2008, as indicated in the registration form. Consequently, the SUTEIVP currently has no formal legitimacy.
4. 887. With regard to the alleged failure of the authorities to act in defence of the rights of the workers of the Potosí Glassworks Company, the Government states that there was no such failure on the part of the Federal Conciliation and Arbitration Board, since pursuant to the Board’s ruling No. IV-79/2008 the SUTEIVP lost its title to the company’s collective labour agreement to the Autonomous Union of Commercial, Industrial, Customs and Allied Employees (SATEC) as it no longer represented the majority of the workers. The decision of the Federal Conciliation and Arbitration Board was based on a meeting held on 9 May 2008 when, at the request of the 478 participants present, a recount was held in which the voting was as follows: for the plaintiff (SATEC), 378 votes; for the defendant (SUTEIVP), 21 votes; abstentions, 79 votes. Given that the vote was not challenged, on 14 May 2008 the plaintiff (SATEC) was recognized as titleholder of the collective labour agreement.
5. 888. The Government points out that several channels were open to the SUTEIVP to defend its rights, which it in fact used to provoke incidents and lodge indirect appeals for protection of its trade union rights, alleging procedural errors. These appeals were dismissed, primarily because it was unable to show that it represented a majority of the workers and thus that it was entitled to be the titleholder of the collective agreement. The foregoing demonstrates that the Federal Conciliation and Arbitration Board attended promptly to the matter and at all times protected the interests of the workers and unions in determining which of the latter held the title to the disputed collective agreement. There was thus no such failure of the authorities to act as alleged by the SUTEIVP, nor any violation of Conventions Nos 87 and 135.
6. 889. Regarding the dismissal of workers, the Government states that the Potosí Glassworks Company has informed it that, for economic reasons linked to a drop in demand for its products, it has taken a number of steps to maintain the productivity and efficiency of its plant. These included shutting down one of its four production ovens. As a result of the shutdown, several workers had to be dismissed; in doing so, the company complied with its obligation to compensate them in accordance with the Federal Labour Act. Consequently, since the workers have been duly compensated, it cannot be considered that they have been unjustifiably dismissed.
7. 890. For the purposes of the said compensation, on 26 January 2008, the company accordingly deposited, with the Special Board No. 34 of the Federal Conciliation and Arbitration Board, the full amount of final salary and compensation due to each of the 180 workers concerned. Some 150 of these collected the amount due to them from the Special Board and each of them signed a voluntary termination agreement. The workers who did not accept the compensation lodged individual appeals with the competent authorities, which are currently sub judice.
8. 891. In conclusion the Government states that:
   • – the Federal Conciliation and Arbitration Board took action promptly to protect the interests of the workers at all times and gave the trade unions the opportunity to determine which of them was entitled to hold the title to the disputed collective agreement. The authorities were therefore not guilty of the failure to act alleged by the SUTEIVP, and Conventions Nos 87 and 135 have thus not been violated;
   • – it is not true that the STPS-SLP failed to take action to protect the workers’ rights, given that constitutionally the power to do so lies with the Federal Conciliation and Arbitration Board, which at all times defended the interests of the trade union and of its members; and
   • – the SUTEIVP lost its title to the collective labour agreement because it no longer represented a majority of the workers, in favour of the SATEC.
9. 892. In the light of the foregoing, the Government requests that the Committee rule that the present case does not call for further examination.

C. The Committee’s conclusions

1. 893. The Committee notes that in the present case the complainant alleges that since 26 January 2008 the Potosí Glassworks Company has dismissed 207 employees, 14 of whom were members of the union’s executive board, or of its vigilance and justice committee, after the union presented the company on 19 January 2008 with a list of demands and notice of strike action. According to the complainant organization, there is no legal justification for the dismissals, which continue to deprive the workers of union representation owing to the failure of the authorities to take appropriate action.
2. 894. The Committee notes the Government’s statement that: (1) the company has informed it that the dismissals were for economic reasons following a drop in demand for its products that obliged it, inter alia, to shutdown one of its four ovens; (2) 180 workers were dismissed, of whom some 150 received the compensation due to them and signed a voluntary termination agreement, while the remainder lodged individual appeals with the authorities that are currently sub judice; (3) in May 2008, by a broad margin, the complainant organization lost to the SATEC its title to the collective agreement, without any objection being raised to the vote carried out by the workers according to the law; and (4) the San Luis Potosí authorities have assisted the federal labour authorities (to whom the matter was submitted) in the process of mediation and conciliation between the parties, by offering suggestions and serving as a safeguard for the parties to the dispute.
3. 895. The Committee concludes that the versions of events provided by the complainant and by the Government are very different, the former claiming that the large number of dismissals aimed at denying the workers trade union representation following the submission of a list of demands and notice of strike action, while the Government refers to a collective dismissal for economic reasons owing to the need to shut down one of the company’s ovens.
4. 896. The Committee notes that, according to information provided by the Government, 150 workers signed an agreement with the company and received compensation and that only 30 workers or so lodged official appeals that are currently sub judice.
5. 897. In the light of the foregoing, and observing that 30 workers decided to resolve the issue of their dismissal through judicial channels, the Committee emphasizes the importance of their appeals being ruled upon within a reasonable period of time; it trusts that the relevant judicial authority will issue its ruling in the very near future and that, if it transpires that the dismissals were for anti-union reasons, appropriate steps will be taken to remedy the situation.

The Committee's recommendations

1. 898. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • The Committee emphasizes the importance of the judicial appeals being ruled upon within a reasonable period of time; it trusts that the relevant judicial authority will issue its ruling on the dismissal of certain workers in the very near future and that, if it transpires that the dismissals were for anti-union reasons, appropriate steps will be taken to remedy the situation.