Rapport intérimaire - Rapport No. 330, Mars 2003

Cas no 2179 (Guatemala) - Date de la plainte: 12-FÉVR.-02 - Clos

Allegations: The complainant alleges numerous anti?trade union acts (various forms of pressure, threats with firearms, physical assaults, forced resignations, non?payment of wages, closure of the undertaking, etc.) directed against officials and members of the trade unions established in two companies (Choi Shin and Cimatextiles) in an export processing zone.

1. 769. The complaint is contained in a communication from the International Textile, Garment and Leather Workers’ Federation (ITGLWF) dated 12 February 2002. The Government sent its observations in communications dated 5 June and 30 December 2002.
2. 770. Guatemala 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. 771. In its communication dated 12 February 2002, the International Textile, Garment and Leather Workers’ Federation (ITGLWF) alleges that a number of different violations of trade union rights were perpetrated at the Choi Shin and Cimatextiles undertakings operating in the Villanueva free zone and producing articles for export to the United States. The complainant states that on 9 July 2001, the workers of the two companies filed an application for official recognition of their unions under the names SitraChoi and SitraCima, and that both unions were affiliated to the Trade Union Federation of Food, Agricultural and Allied Workers (FESTRAS) which has been assisting and advising them.
2. 772. The complainant adds that the workers submitted the documents required to obtain legal recognition to the Ministry of Labour on 9 July 2001 and on the same day informed the company management of the establishment of the union, thereby obtaining a “job protection” court order, preventing the company from dismissing the workers. The complainant alleges that a violent anti-union campaign began almost immediately, and more specifically:
3. (1) Lawyers hired by the company offered workers the chance to join a solidarista association supported by management, which would offer a number of economic, social and cultural benefits.
4. (2) The company convened a meeting of supervisors who set out to disseminate propaganda against the trade union and the workers, who were told that the company would close, and that their leaders were on a blacklist and could not return to work; some of the supervisors accused the trade union leaders of being guerrilla fighters.
5. (3) Camilo Obed Ramírez Pojoy, General Secretary of the union at the Choi Shin company, was summoned to the office of the manager and offered money to leave the union. As he refused, he was assaulted and threatened by the Director of Human Resources. On 11 July 2001, he failed to come to work after finding a menacing letter on his door. On the same day, the shed where a workers’ meeting was being held after the work shift was pelted with stones.
6. (4) On 11 July 2001, the company launched a series of private (and mandatory) meetings with workers at each production line and with the personnel directors at both plants. The workers were told that the trade union officials were out to ruin the company and force it to close, and that the union would cut 50 quetzales from their wages.
7. (5) In the late afternoon of 11 July 2001, Mrs. López, a trade unionist, was threatened with a pistol on her way home. As she left her bus and walked towards her house, she was followed by a man in a black car whom she recognized from the plant. The man got out of the vehicle and took aim at her with the pistol. Fortunately, Mrs. López was able to escape her attacker. Her mother called the police, who refused to come to the neighbourhood. On the following day, she reported the incident to the Ministry of Labour. She and her mother were accompanied to the plant by two labour inspectors and, once there, she was told that the management could initiate criminal proceedings against her for allegedly signing a contract of employment on the basis of false documents, and advised her to abandon her complaint, which she did.
8. (6) On 13 July 2001, the workers were taken off the production lines and forced to sign a paper saying “No to the union”. In some cases, the document was communicated by a supervisor. In most cases, workers were summoned individually or in small groups to the supervisor’s office to sign the document.
9. (7) The family of Mrs. Gloria Cordoba, General Secretary of the Cimatextiles union, also received threats. Two unidentified individuals came to the primary school where her daughter works, asked if she worked there, and left. The following day, she was robbed on her way from the bank where she had just drawn her wages. The men robbed her of US$150 and told her it would not be the last time. Two other men went to her home and told her 12 year old son that they were looking for his uncle, a known union supporter.
10. (8) The union officials have been summoned individually by the managers or taken outside the plant to persuade them to leave the union. The company has made it clear that the movements of trade union members were followed very closely.
11. (9) On 18 July 2001, during the lunch break, a group of workers meeting in front of the main gate of the plant moved towards the area where the union officials were sitting. The man in charge of the group was one of the main supervisors at the Choi Shin company, and the group was composed mainly of workers employed at that plant. They threatened the union officials, telling them they were going to lynch and kill them, and then began pelting them with food, bottles and stones. Company managers and the personnel directors were present as this took place and did nothing but look on and laugh. The crowd broke up into small groups which surrounded and isolated individual union officials. At around 13.30 p.m., the trade unionists at the Cimatextiles company were taken off the production lines by a group of workers mainly from the Choi Shin company, who were armed with sticks and rocks and told them to sign a letter of resignation. The trade unionists sought refuge in the guards’ hut by the entrance which was soon completely surrounded by workers. At 14.15 p.m. the plant manager, Mr. Choi arrived, calmed the situation and allowed agents of the anti-riot unit to escort the trade unionists off the plant premises. The trade unionists asked the police to enter the plant premises to escort the other trade union members still inside the plant, but the police refused and said that there were too many hostile groups inside the plant.
12. (10) On 19 July 2001, trade union officials who had not resigned the previous day reported for work as planned; 21 of them had made a statement to the public prosecutor the previous evening. At midday the workers started to assemble in groups of 10 to 15, and each group then joined a crowd of at least 100 workers. They began shouting and throwing stones, sticks and bottles at the trade union officials, shouting at them to resign from the company. One group of trade unionists was able once again to take refuge in the guards’ hut at the entrance. This was then surrounded by the crowd, which shouted insults and threats and pounded on the doors. The rest of the crowd, which remained nearer the plant entrance, beat, kicked and dragged the trade unionists. At the gates, one of the company managers threatened to let the crowd in if the union officials did not sign the letter of resignation. When the police arrived, the crowds accused the union officials of being a “stubborn minority”. Finally, the police agreed to enter the plant to release the trade unionists still trapped inside.
13. (11) Given this extremely tense situation, most of the trade unionists decided that it was not safe to return to the plant on 20 July 2001. Instead, they went to the Ministry of Labour and presented a complaint explaining why they could not go back to work. They were told to go to the plant on 21 July 2001 to draw their wages for the previous two weeks, but when they turned up on Saturday morning a crowd had already formed inside the gates. While personnel chiefs looked on, between 50 and 70 workers armed with stones and bottles started shouting, banging their weapons on the plant gates and shouting obscenities against the union officials. Both the managers and the police said they were unable to ensure the workers’ safety, and they decided not to enter the plant. For several days, the workers continued to report for work punctually but could not enter the plant because their safety was at risk.
14. (12) On 25 July 2001, the Ministry of Labour convened a meeting between workers and management. The company was told to resolve the situation and warned that it might lose its export licence. A few days later, a new agreement was signed with the company and the Ministry of Labour granted legal recognition to both unions. The agreement included four clauses: first, the company committed itself to respecting the right to freedom of association; second, the company agreed to reinstate all union members in their posts, preserving their seniority in the company, to allow them to carry out their union activities without interference, and to allow international observers to enter plant premises to ensure that the agreement was being observed; third, the company agreed to apply international standards and labour legislation against persons responsible for violations; lastly, it undertook to make a public statement to the effect that the plant would not close as a result of the establishment of the new union. These measures were well received by the union officials and members in both plants. However, it became clear within only a short time that there were problems with the implementation of the agreement. The trade union officials were assigned unpleasant jobs in reprisal and the management is threatening to bring criminal charges against them.
15. (13) On 9 August 2001, management and union representatives met for the second time through the intermediary of the Ministry of Labour. It was agreed that the company would inform the workers that the reduction in overtime in force was due to a temporary drop in the normal production cycle (not, as rumour had it, to the establishment of the union). Management stated that those responsible for “verbal and physical assaults” against union members had received written reprimands.
16. (14) The legal adviser of FESTRAS received telephone death threats and was forced to resign from his post on 31 August 2001.
17. (15) From 1 to 3 September 2001, the management of the company closed the plant for two days, allegedly in response to a drop in production. Before the closure no guarantee was given that the plant would re-open or that workers would be paid for the period of the closure. The company clearly decided on a temporary closure in order to spread fear among the workforce and in the hope that workers would resign. These events also aggravated fears that the company might relocate production and if possible close down the union’s offices.
18. (16) On 10 September 2001, without any prior warning and without any charge being brought, two union officials were questioned by individuals who claimed to be investigators of the Attorney-General’s Office. They were not informed of the offence for which they were under investigation, nor were they given access to a lawyer; these two derelictions both constitute violations of due legal process in Guatemala. Later on, it became known that the inquiry was connected with a reported theft of clothing on 13 July 2001, a matter of days after the union announced its establishment. On 26 October, Mr. Sergio Escobar, a union official was attacked and physically assaulted by an unidentified armed man who was apparently working with the company security department. Mr. Escobar called for help from other workers, who managed to detain the attacker and call the police. When the police finally arrived, they met management representatives and refused to hear the workers.
19. (17) In mid-November 2001, Camilo Obed Ramírez Pojoy, General Secretary of the Choi Shin union, resigned, having been worn down by constant assaults and intimidation, and the company has renewed its attacks against the union.

B. The Government’s reply

1. 773. In a communication dated 5 June 2002, the Government states that the cases involving the Choi Shin and Cimatextiles enterprises have been brought before the General Labour Inspectorate. These cases started in January 2002 with a complaint concerning changes in the employment situation of a worker at the Choi Shin plant and pressure on her to resign. For the same reason, in April 2002 another complaint was made, this time against Cimatextiles S.A. Both cases were settled in favour of the workers by the timely action of the Labour Inspectorate.
2. 774. The Government adds that in June, July, August and September 2001, complaints were made against these two undertakings by workers who were members of the new unions there. It was found necessary to encourage effective dialogue between the parties through meetings, one of which was attended by the First Deputy Minister of Labour and the Deputy Minister of Economics, who called the employers and workers to participate in effective negotiation with a view to improved observance of national law and international labour standards in force in the country.
3. 775. Despite the timely and effective participation of the Ministry of Labour, union members at the two companies and the employers were unable to reach agreement on 31 October 2001 at a meeting held in the presence of the Minister of Labour and the labour inspectors, and they agreed instead to meet every 15 days on Wednesdays on Ministry premises with a view to applying tripartism as a means of negotiating and resolving disputes that may arise between workers and employers at these two undertakings.
4. 776. The Government adds that on 22 March 2002 a tripartite meeting was held with a view to seeking a joint settlement. On that occasion, senior officials of the Ministry of Labour were present, headed by the First Deputy Minister, the General Secretary of the ITGLWF, representatives of the Inter-American Regional Organization, senior managers from Choi Shin headed by the company president, labour advisers from the Clothing and Textiles Commission of Guatemala and representatives of FESTRAS. This important meeting managed, through the good offices of these authorities, to start a process of dialogue with a view to bringing about better employer-worker relations, in accordance with the rights of textile workers. On 10 April 2002, a meeting took place at the office of the Minister of Labour in the presence of ministerial officials, company managers and workers’ representatives from the companies. At the meeting, the President of the Choi Shin company offered to resolve the problems that had arisen previously and expressed willingness to comply with national and international legal standards in force. It was agreed that meetings should be held at the Choi Shin and Cimatextiles companies every 15 days. These meetings have been held regularly, with mediation by the labour inspectors. Lastly, the Government indicates that the Ministry of Labour, acting on the principle of developing and implementing a national policy for the defence and development of trade unionism, is acting in accordance with the most stringent technical requirements, the democratic principles embodied in the country’s political constitutions and the labour law provisions in force in Guatemala.
5. 777. In a communication of 30 December 2002, the Government expresses its determination to solve the problems, and states that the administrative proceedings will lead to sanctions if a violation of labour rights is established. The Government also gives a long list of the criminal proceedings that have been filed (however, this information does not clearly indicate the questions or issues to which it refers, even though it appears that it is related to points 9 and 10 in the alleged acts of violence mentioned by the complainant organization). The Government further mentions that Mrs. Gloria Cordoba gave up all civil or criminal lawsuits she had filed, in view of the agreement she concluded with the company that she could freely exercise her trade union activities.

C. The Committee’s conclusions

1. 778. The Committee notes with considerable concern that in the present case the complainant alleges numerous acts of anti-union discrimination at the Choi Shin and Cimatextiles enterprises in the Villanueva free zone. The Committee notes that in general terms the allegations relate to the following issues: (i) proposals to workers that they should join a “solidarista” association; (ii) dissemination of propaganda against the union and slanders against its officials; (iii) threats to place trade union officials on blacklists; (iv) unsuccessful offers of financial inducements to the General Secretary of the union at the Choi Shin enterprise to leave the union, followed by assaults and threats by the company management, as well as pressure put on other union officials to make them leave the union; (v) a threat with a firearm and harassment of the trade unionist, Mrs. López, and members of the family of the General Secretary of the Cimatextiles union; (vi) pressure on workers to sign documents expressing opposition to the union; (vii) assaults and death threats against union officials at the Choi Shin enterprise made by non-unionized workers in the presence of company managers, which resulted in the resignation of some officials; (viii) death threats against the legal adviser of FESTRAS, which resulted in his resignation; (ix) closure of the enterprise for two days, during which wages were not paid; (x) questioning without prior notification of two trade union officials by officials of the Attorney-General’s Office; (xi) physical assaults against the union official, Mr. Sergio Escobar, inside the company; and (xii) the resignation of the General Secretary of the union at Choi Shin following assaults and intimidation.
2. 779. The Committee notes that according to the Government: (1) complaints have been made against the companies concerned to the General Labour Inspectorate by workers belonging to the new unions at these companies; (2) a number of meetings have been held by the parties with the participation of the administrative authorities who called on workers and employers to participate in effective negotiations with a view to improved observance of national law and international standards in force in the country; (3) during a meeting of the parties held on 10 April 2002, the representative of the Choi Shin enterprise offered to resolve the problems that had arisen and agreed to hold meetings every 15 days with the mediation of the labour inspectorate; and (4) some issues in connection with acts of violence have been referred to the courts. The Committee notes that the complainant also refers to an agreement supposedly concluded by the parties on 25 July 2001 which contained, among other things, a commitment on the part of the companies to respect the right of association and to reinstate all union members, although the complainant states that this agreement has not been honoured.
3. 780. In this regard, the Committee deeply regrets that, in the light of the many serious allegations that have been made (some of them relating to serious offences such as threats and physical assaults), the Government: (1) has confined itself to state that legal proceedings have been filed concerning certain acts of violence and lists the series of legal proceedings; and (2) has not communicated specific enough observations on all the allegations. Under these circumstances, the Committee strongly urges the Government to ensure that the investigation covers all the allegations made in this case, with a view to clarifying the facts, determining responsibility and punishing those responsible. The Committee requests the Government urgently to send complete observations in this respect and to consult without delay the enterprises and trade unions concerned through the national organizations.

The Committee's recommendations

1. 781. In the light of its foregoing interim conclusions, the Committee invites the Governing Body to approve the following recommendation:
   • Noting with considerable concern the seriousness of the allegations, such as threats and physical assaults, and deeply regretting that the Government has not sent specific enough observations, the Committee strongly urges the Government to ensure that the investigation covers all the allegations made in this case concerning serious acts of violence and other anti-union acts at the Choi Shin and Cimatextiles enterprises in the Villanueva free zone, with a view to clarifying the facts, determining responsibility and punishing those responsible. The Committee requests the Government urgently to send complete observations in this respect and to consult without delay the enterprises and trade unions concerned through the national organizations.