Definitive Report - Report No 133, 1972

1. 58. The Committee examined this case for the first time at its meeting in November 1970, when it submitted an interim report, contained in paragraphs 58 to 73 of its 121st Report, which was approved by the Governing Body at its 182nd Session (March 1971). In it, the Committee asked the Government to supply certain additional information. When this was received, the Committee once more examined the case, at its meeting in February 1972, following which it submitted its final conclusions to the Governing Body. These conclusions, which were set forth in paragraphs 74 to 85 of its 129th Report, were approved by the Governing Body at its 185th Session (February-March 1972). In a communication dated 4 August 1972, the Government submitted comments on the conclusions of the Committee and the Governing Body, thus necessitating a re-examination of the case.
2. 59. Mexico has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but it has not ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 60. In the light of the information received, the Committee had summarised the case as follows. On 3 June 1969 the Staff Union of Embotelladora del Norte, SA, concluded a ten-day agreement with the management of the firm on various problems that had arisen in connection with the interpretation of certain clauses of the collective agreement then in force. The agreement provided that, on the expiry of the ten days, the union and the management should reach a final solution to the problems. On 16 June 1969, i.e. a few days after the period had expired, the firm proceeded to dismiss 121 workers belonging to the union, including members of the executive committee (the reason advanced being that there had been an unwarranted stoppage of work on 2 and 3 June), the only persons not affected by this measure being four workers who had joined a new union. Notice of the dismissal was given to the Central Conciliation and Arbitration Board on 17 June. On the same day the Staff Union presented the Board with a series of complaints and notified the company of its intention to call a strike on the grounds that the firm had failed to abide by the collective agreement and ordered the dismissals. Also on 17 June, another organisation, the Union of Workers of Aerated Water, Bottling and Allied Plants, was registered with the Board as a member of the Mexican Confederation of Labour, and a collective agreement, concluded between this new union and the firm, was filed with the Board on the same day.
2. 61. On 23 June the Board nevertheless arranged a meeting, which was attended by the Staff Union of Embotelladora del Norte, SA, and the management, and on the following day a count was made, with the help of the Board, of the workers in favour of the strike, as required by law, including the workers who had been dismissed. The same day, the Board gave a ruling to the effect that the strike was " non-existent ", the reasons adduced being that the workers had been dismissed before the complaints were submitted and before notice had been given of the strike, that they were consequently not entitled to have their votes included in the count and, this being so, that the majority required by law had not been reached.
3. 62. The union concerned applied for an injunction against this ruling, which was granted. For various reasons the magistrate considered that the workers who had been dismissed should be included in the count and decided that the Board should determine whether or not the strike was lawful on the basis of the number of votes cast, including those cast by the workers who had been dismissed.
4. 63. The firm appealed against this decision, and the appeal was heard by the Court of the Eighth Circuit, which overruled the decision contained in the injunction, with the result that the original ruling declaring the strike to be " non-existent " remained valid. The Court considered, in particular, that the firm had already dismissed the workers belonging to the union, and had already terminated the collective agreement before the union submitted its complaints and gave notice of a strike, that the union was no longer entitled to represent such workers, that it was impossible to recognise a strike by persons not in the service of the undertaking and that the notice of the strike was intended to secure compliance with a collective agreement that had already been rescinded.
5. 64. At its session in February 1972 the Committee considered that it was not called upon in this case to examine the legislation or the decisions taken as regards the lawfulness or unlawfulness of the strike, but rather the basic aspect of the dismissal of workers belonging to the Staff Union of Embotelladora del Norte, SA, in an effort to determine whether, in the light of the available information, the action taken constituted an unfair practice on the part of the firm, as the complainants allege. The Committee drew attention to the principle contained in Convention No. 98, that workers must enjoy adequate protection against acts of anti-union discrimination in respect of their employment and that such protection shall apply, more particularly in respect of acts calculated, inter alia, to cause the dismissal of, or otherwise prejudice, a worker by reason of union membership.
6. 65. The Committee noted that the firm had signed a provisional agreement with the union to the effect that both parties would endeavour to reach a final solution to the problems that had arisen. The firm nevertheless proceeded to dismiss all the workers belonging to the union, except four who had joined a new union. The reason advanced for the dismissal was that the workers concerned had taken part in an unwarranted stoppage of work, even though the stoppage had taken place several days previously, i.e. while the provisional agreement temporarily resolving the dispute was being negotiated. Furthermore, on the day following the dismissals, the firm signed a collective agreement with a separate union, which was registered with the authorities on the same day.
7. 66. The Committee considered that all these facts clearly indicated that the dismissal was motivated by the trade union membership of the workers concerned and that its purpose was to prevent the union representing them from defending their interests by collective bargaining or by resorting to strike action. In the Committee's opinion, this was plainly an act of anti-union discrimination by the firm and the Committee regretted that the authorities had not taken, or had not been able to take, the necessary steps to protect the workers and the trade union concerned.
8. 67. In its comments on these conclusions, the Government states that in any country subject to the rule of law, where legislation exists to protect workers, the measures taken depend on whether the parties to the dispute take their case to the judicial or the administrative labour authorities.
9. 68. In this particular instance, the Government adds, the case was taken to the judicial authorities following the issue of a written strike order after the workers' dismissal; at no time prior to this were the labour authorities asked to intervene. The Arbitration Board was therefore bound to decide that the situation could not be reversed since there was no point or time at which it was empowered to rule on the dismissals.
10. 69. The law, states the Government, empowers an employer and a worker to terminate a contract of employment unilaterally for good reason and the termination remains operative unless the worker is reinstated by order of a labour court of the first instance on the ground that the employer was not justified in making the dismissal.
11. 70. The Government goes on to state that the decisions by the Arbitration Board and the Court of the Eighth Circuit were fully in accordance with Mexican legislation and case law. Moreover, the courts, in the decisions with which the Committee's report was concerned, merely ruled on the existence or non-existence of a strike. These decisions in no way prejudge the character of the dismissals. A court order as to whether or not a strike exists does not cover the substance of the dispute. This view is endorsed by the Supreme Court of Justice.
12. 71. As in its previous communications, the Government states that the parties to the dispute enjoyed the benefits of due process of law. The authorities intervened at a particular time and their conduct can only be judged with effect from that moment. " Breach of the law or bad faith by management, even if they occur, are not the fault of the Government, especially if they took place before the authorities were notified of a dispute between private parties. The Government's conduct (through the Board, which was required to determine whether or not a strike could be deemed to exist) cannot be interpreted either as inability to prevent something that had already happened when it was called in, i.e. the dismissals, or as consent, since it was not asked to settle the substance of the dispute but only an incidental aspect, viz. whether or not a strike existed."
13. 72. In the Government's view, to regret that the authorities have not taken or have not been able to take the necessary steps (see paragraph 66 above) is to assume that the judicial authorities can take arbitrary action and ignore the law, whereas they are able to operate only within the framework of their function and according to the way the parties state their case. The executive or administrative authorities in a State subject to the rule of law are bound to abide by the decisions of the judicial authorities, which in Mexico possess the functional autonomy they need to discharge their responsibility.
14. 73. In this particular case, the Government continues, the labour and federal courts as the sole interpreters of the law (under the Constitution) decided that " the dismissed workers could not be included in the count of a strike ballot and that the strike itself was nonexistent. In concerning themselves with the strike, they did not decide whether or not the dismissals were justified, since this aspect would require a separate judgement ".
15. 74. " The Government as a whole " it states " takes, and can only take, such measures in the field of freedom of association as its legislation and law in general permit ".
16. 75. Quite apart from whether or not a strike existed, the Government affirms that the workers were covered by the law at all times, since in addition to exercising their right to strike they submitted claims (either individually or collectively) for reinstatement in their former jobs, combined with maintenance of their acquired rights with regard to seniority, wages, overtime, savings fund contributions, profit sharing, holidays with pay and wages since 16 June 1969.
17. 76. The claims came before the body called No. 2 Special Group (Industry). The Government points out that hardly had the complaint been submitted and the hearing begun, when the complainants began to withdraw their demands. Between 30 June 1969 and 6 November 1970, 84 of the original 114 claimants withdrew and in January 1970 the defence counsel requested that the cases of the remaining 30 workers be allowed to lapse. When the case came before the labour court, the latter upheld this request and declared the case to have lapsed with respect to the remaining workers who had not withdrawn their claim. The plaintiffs queried this decision, but their argument was rejected, although they were informed that the decisions could be challenged under the protection of rights legislation, i.e. they were " at liberty to enforce their rights in accordance with the ordinary provisions of the law ". The Government concludes by stating that the complainants did not lodge any appeal against the decision.

B. B. The Committee's conclusions

1. 77. The Committee notes that the Government's comments relate to two main points: the procedure followed and decisions given regarding the lawfulness or unlawfulness of the strike; and the proceedings instituted by the injured workers and the results.
2. 78. As regards the former point, the Committee has already said that it does not consider that it is called upon to examine the legislation or the decisions taken concerning the lawfulness or unlawfulness of the strike (see paragraph 64 above).
3. 79. As regards the dismissals involved in this case, the Government argues that the workers concerned were covered by the legal safeguards against unfair dismissal and initially at least made use of the opportunities for appeal open to them in order to secure redress. The fact that the majority of them subsequently withdrew and the remainder did not follow their appeals through does not alter the situation that these opportunities exist and are open to all who consider that they have been injured. The Committee does not suggest that these procedures were not properly followed.
4. 80. Nevertheless, the fact remains that the dismissals in question involved all workers belonging to the union making the complaint (with the exception of four who joined another union) and that this sweeping measure not only deprived the workers concerned of their jobs because of their trade union membership but also entailed the disappearance of the union itself since it was a plant union. The Committee further notes that on the same day-17 June 1969-the competent authority, namely the Central Conciliation and Arbitration Board, officially took cognisance of the dismissal of the workers concerned, registered the new union which had just been set up and filed the new collective agreement concluded at the same time between this new union and the management (see paragraph 60 above). The sequence of events compels the Committee to conclude that the management was engaging in a typical unfair practice and a definite act of anti-union discrimination directed equally against individual workers and the organisation to which they belonged.
5. 81. In view of these facts, which are not disputed by the Government, the Committee is bound to conclude that in this case " adequate protection " was not given against acts of anti-union discrimination; these acts had the effect of causing the disappearance of the union itself, since it was an independent union consisting solely of workers in the undertaking.