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The State Department’s Mexico 2014 Human Rights Report concludes that:
The government did not consistently protect worker rights in practice. Its general failure to enforce labor and other laws left workers without much recourse with regard to violations of freedom of association, working conditions, or other problems.1
The key issues are summarized below:
The practice of “protection contracts” (collective bargaining agreements signed between an employer and an employer-dominated union, often without the knowledge of the workers) is the single most serious threat to freedom of association and democratic collective bargaining in Mexico. Today, in thousands of workplaces, workers are governed by CBAs which they have never ratified, were never consulted on, and in many cases have never seen. The magnitude of this problem has been well-documented in public reports of review under the NAALC,2 academic investigations,3 and recent case studies.4
The U.S. representative to the International Labor Conference Committee on Application of Standards in June 2015 stated that:
The persistence of false trade unions, or “protection unions,” remains a major challenge in Mexico and constitutes a serious abrogation of the right to freedom of association, particularly as collective bargaining agreements are concluded with these protection unions without the knowledge and consent of workers, often even before enterprises open, and providing only the minimum benefits already required by law.5
Following are brief summaries of some current cases of protection contracts:
At the Honda plant in El Salto, Jalisco, the company has a collective agreement with the Sindicato de Empleados y Trabajadores en la Estructura, Armadura Motriz e Industrial (SETEAMI), a CTM affiliate. In 2008, workers formed an independent union (STUHM) to protest health and safety conditions, lack of profit sharing, and their exclusion from the collective bargaining process. After a series of legal delays and the firing of the STUHM leadership, the union was legally registered in August 2011. STUHM then filed a demand for control of the collective agreement. SETEAMI evaded the legal procedures by changing its name twice and its address multiple times; finally in September 2012 SETEAMI demanded the cancellation of STUHM’s registration, which was quickly granted by the authorities.
On April 14-16, 2013, STUHM led a work stoppage to protest the company’s refusal to pay legally-mandated profit sharing bonuses. In response, Honda fired 13 union leaders. On 24 January 2014, the Thirteenth Collegiate Tribunal for Labor Matters of the First Circuit ordered the Federal Labor Board to accept the STUHM’s registration (file IV-302/2012).6 And on November 26, Raul Celestino Pallares – a STUHM leader fired in 2010 – returned to work after the Labor Board ordered his reinstatement.7 The union continues to demand that the Labor Board set a date for an election and order the reinstatement of the other fired union leaders.
The National Union of Mine, Metal, Steel and Related Workers of the Mexican Republic (SNTMMSSRM) declared a strike at the Grupo Mexico mine in Cananea, Sonora on 31 July 2007. On 21 April 2010, the MexicanSupreme Court nullified the collective bargaining agreement between Grupo Mexico and the SNTMMSSRM, and on 6 June 2010, the Mexican police and military forcibly evicted members of the SNTMMSSRM from the mine.
Subsequently on 6 June 2011, the Federal Labor Secretariat announced that a collective bargaining agreement had been signed between Grupo Mexico and the CTM covering the workers at the Cananea mine (which the company has re-named Buenavista). This contract was signed without the knowledge of or consultation with either the members of SNTMMSSRM who continue the legal strike that began on 31 July 2007 or the replacement workers contracted by Grupo Mexico.8 Subsequent reports indicate many violations of freedom of association, health and safety, and other rights.9 In May 2015 approximately 70 of the replacement workers were fired after they held an assembly to replace the CTM because of objections to low profit-sharing payments.10
In 2011, workers at PKC, a Finnish autoparts company in Ciudad Acuña, Coahuila that produces for Ford and other U.S. automakers, affiliated to the SNTMMSSRM. On 28 November 2011, the SNTMMSSRM made a formal bargaining demand (emplazamiento) to PKC in accordance with Mexican law. On 6 December 2011, the company responded, refusing to bargain because of an existing collective bargaining agreement with the “Miguel Trujillo López” union of the Confederation of Mexican Workers (CTM), deposited in the Federal Labor Board on 2 September 2011. The leader of the “Miguel Trujillo López” Union is Tereso Medina, CTM leader in Coahuila and former President of the Labor Commission of the Federal Chamber of Deputies. This was the first time that the employees of PKC were informed that they had a collective bargaining agreement or that they were “represented” by the CTM.
On 3 February 2012, the SNTMMSSRM filed a legal demand for control of the collective bargaining agreement (titularidad) with the Federal Conciliation and Arbitration Board, requesting an election (recuento). The CTM and the company objected, and the Board did not finally issue a decision until 5 October. During this time, the CTM actively collaborated with the company to intimidate and coerce workers and received direct payments of at least $175,000. The SNTMMSSRM lost the election on 18 October by a vote of 2509-2311. The SNTMMSRM requested a new election on November 5, 2012. Thirty-three months later, the Labor Board is still considering objections field by the company and the CTM and has yet to set an election date.
Following the election in December 2012, the company fired the SNTMMSRM leaders in the plant. Ten union leaders filed legal demands for unjust dismissal with the Federal Conciliation and Arbitration Board. On April 16, 2015, the Board ordered the reinstatement of four of the leaders; however, the company has appealed this ruling. The other six are still waiting for a decision from the Board.11
An investigation by the Worker Rights Consortium, and independent monitoring group, found that “PKC has thwarted its employees’ efforts to choose their own union to negotiate a collective bargaining agreement by,among other actions, colluding with a local affiliate of the Confederación de Trabajadores de México (Confederation of Workers of Mexico, CTM), a labor organization that has a history of acting as a “protection union” by assisting employers in blocking independent unionization efforts; interfering with a union election; and terminating employee union activists in retaliation for their union activities.”12
April 2014, workers at three industrial plants in Monclova, Coahuila – Teksid, Gunderson, and PyTCO - affiliated to the SNTMMSSRM and held work stoppages to demand that the employers recognize the SNTMMSSRM as their bargaining representative.13 The workers reported that they had no access to union representatives or their collective bargaining agreements. The employers signed agreements recognizing the SNTMMSSRM while it filed legal demands for elections. However, the CTM blocked these demands in the local Labor Board14 and the companies began systematically intimidating and firing SNTMMSSRM supporters.15 On March 7, 2015, a worker leader was severely beaten by CTM goons.16 CTM leader Tereso Medina also transferred control of the contracts from one CTM union to another with no participation of the workers.17
In 2007, workers at the Vidriera Potosí, a bottle-making plant owned by the Grupo Modelo division of Anheuser Busch-InBev, left the CTM and formed an independent union, SUTEIVP. The new union won wage increases of 19% to 36% in its first negotiation. However, the company responded by firing the SUTEIVP leadership and calling in the CROC, led by Salim Kalkach, which was given free access to the plant.18 In this climate of intimidation, the CROC won an election in April 2008 and has since controlled the collective bargaining agreement. In April 2014, the Federal Labor Board ordered the reinstatement of 33 fired SUTEIVP leaders, but the company has not yet allowed them to return to work.19
ILO Complaint on Protection Contracts
The ILO Committee on Freedom of Association has issued two reports on a case brought by IndustriALL Global Union and several Mexican unions that examines the problem of protection contracts in great detail.20 In its 370th report (para. 567), issued on 31 October 2013, the CFA made the following recommendation:
In the light of its foregoing conclusions, the Committee invites theGoverning Body to approve the following recommendations:
- (a) While it appreciates the information provided by the Government, the Committee stresses that it is important that the impact of the reform of the Federal Labour Act on overcoming the problems raised in this case should be evaluated in terms of the legislation, but especially in terms of practice, by the most representative national employers’ and workers’ organizations and by the six organizations that presented or supported the complaint. The Committee therefore requests the Government, in dialogue with these organizations, to evaluate the impact of the legislative reform on the questions raised and to identify any issues that remain unresolved in law or practice.
- (b) The Committee requests the Government and the complainant organizations to keep it informed in this regard.
- (c) The Committee reminds the Government that it may avail itself, if it so wishes, of ILO technical assistance in the framework of the evaluation process of national law and practice.
The GOM must comply with the recommendation of the CFA to convene a dialogue including the complaining parties (not simply a series of bilateral discussions, which is all that has been offered so far).
Critical measures that would actually address the problem of protection contracts include:
- A legal requirement that contracts be ratified by workers. This was proposed in the draft of the 2012 labor law reform that was approved by the Mexican Senate (Article 388 bis), but was not included in the final legislation.
- A legal requirement that unions and employers give copies of collective bargaining agreements to all workers covered by these agreements. Even employer-friendly organizations recommend this practice.21 Currently many workers have no access to these documents and may face intimidation if they request copies. Some contracts are now available online; however, a detailed analysis reveals that only contracts in the Federal jurisdiction and one state are actually available in this manner.22 Moreover, this system is cumbersome and many workers do not know how to use it.23
- Simplifying procedures for “recuento” elections. Under current law, once a CBA is established (with or without the knowledge and consent of the workers), the only way workers can modify it is to affiliate to another union which can then challenge the established union for control of the CBA (“titularidad”). This is accomplished through an election (“recuento”) supervised by the labor authorities, who have extremely broad discretion as there are no laws or regulations that govern the conduct of these elections.24 In the PKC case, for example, the Federal Labor Board delayed the first recuento for ten months, and a second request for an election has been delayed even longer.25
A recent report on "everyday justice," prepared at the request of the Mexican Presidency by the Center for Economic Investgation and Teaching (CIDE), concluded that:
The Conciliation and Arbitration Boards are the institution responsible for providing labor justice. There is a relatively broad consensus that their current performance is not adequate and that they have serious operational problems. It is urgent to conduct a serious, documented and rigorously-designed review to propose fundamental solutions, while taking immediate action to advance the Boards' professionalism, protect vulnerable workers, and eliminate areas of discretion that exist today and often become sources of corruption. One of the first tasks would be to review the tripartite structure of boards and their eventual incorporation into the judiciary. The body responsible for conducting the dialogue proposed in this document may lead this effort.27
At the International Labor Conference in 2015, the U.S. representative stated that:
We are also concerned by the enabling role of conciliation and arbitration boards in the establishment and perpetuation of protection unions, particularly through their authority to register collective bargaining agreements and to administer the recuento process through which a union attempts to secure the collective bargaining rights for its workplace. The structure of these local boards does not provide for adequately inclusive worker representation and often perpetuates a bias against independent unions. After so long, it is time that the Government of Mexico transfer these functions to the judicial branch or some other independent entity to ensure honest representation of workers and the full and fair administration of labor law and adjudication of disputes.28
Bias and Corruption in Labor Boards
Mexico’s system of Labor Boards (Juntas de Conciliación y Arbitraje) has been widely criticized for inefficiency, political bias, and corruption.26 While nominally tripartite, in practice Labor Boards are controlled by the Executive Branch and have no autonomy. While workers in theory have direct representation, the procedures for electing worker representatives are obscure and in practice there is little opportunity for democratic participation. In practice, the worker representatives on the Boards function as agents of employer-dominated unions.
A number of experts have proposed replacing the Labor Board system with an impartial arbiter. This could be achieved through the establishment of an independent agency with both administrative and judicial functions, or within the judicial branch, or through a combination of transferring some functions to a new independent entity and others to the judiciary.
Limitations on Trade Union Autonomy
Arbitrary Denial of Trade Union Registration
The refusal of Mexican labor authorities to deny legal registration (registro) to independent unions on formal or technical grounds is well-documented in cases presented under the NAALC29 and to the ILO Committee on Freedom of Association.30 Recent cases confirm that this practice continues.31
Toma de Nota
In order for an elected union officer to take office, he or she must have a certification from the labor authorities that the election was conducted according to the union statutes.32 In practice this requirement – known as “toma de nota” – has been used by the labor authorities as a tool to deny union office to leaders who are politically disfavored. While the scope of “toma de nota” was restricted by a May 2012 Supreme Court ruling,33 it invites abuse and should be abolished.
Radio de Accíon
The Mexican labor authorities continue to assert that unions may represent only workers in specific industries (e.g. a union that represents mineworkers may not also represent autoparts workers), asserting tha the state may restrict a union to a specific “radius of action” (radio de accíon).34 Moreover, labor authorities have refused to allow unions to modify their statutes to represent workers in other industries.35 These restrictions should be eliminated.
Union Democracy and Rights of Union Members
As noted above, Mexican union members have no right to receive a copy of their collective bargaining agreement. While the labor law requires that union statutes certain financial disclosure and due process provisions, many workers do not even know what union represents them and, if they do, have no way to obtain a copy of their union statutes. Union members should have the right to receive hard copies of their contracts, by-laws, and financial information and have effective legal remedies for failure to provide this information.
Limitations on the Right to Strike
The Mexican Labor Boards routinely declare strikes “non-existent,” often on narrow technical grounds.36 While independent unions have frequently succeeded in persuading the courts to overturn the decisions of the Labor Boards, this imposes significant costs and delays on the workers.
The courts have significantly narrowed the right to strike by allowing employers to nullify collective bargaining agreements under a theory of force majeure.37 In addition, the courts have challenged the constitutionality of articles 465 and 937 of the Federal Labor Law, which allow workers to submit a strike to the Federal Labor Board for binding arbitration.38
Weak Remedies for Unjust Dismissal
Studies indicate that on average workers who bring claims of unjust dismissal to the Labor Boards receive less than a third of the amount to which they are legally entitled.39 The 2012 labor law reform capped back pay in cases of unjust dismissal at 12 months, although in practice it often takes much longer to resolve a case. Together with the poor functioning of the Labor Boards noted above, these practices create a significant disincentive for workers to exercise their rights.
The use of subcontracting or outsourcing to weaken worker rights, including legal rights to back wages, social security benefits, and profit sharing payments, is widely reported by Mexican labor rights advocates.40 The percentage of workers employed by subcontractors has grown from 8.8% in 2004 to 16.6% in 2014.41 The 2012 labor law reform may have exacerbated this problem.
Workplace Health and Safety
The 2012 DOS Human Rights Report noted serious health and safety problems in the mining and petroleum industries. Since the 2006 explosion at the Pasta de Conchos coal mine that killed 65 workers,42 mine safety has drawn significant attention. However, serious problems continue to be reported, including failure to conduct inspections; low pay, poor training and corruption of inspectors; lack of effective civil and criminal penalties, and inadequate compensation for victims.43
Rights of Migrant Workers
Abuses in the recruitment in Mexico of migrant workers for the U.S. labor market are well documented.44 While these abuses cannot be corrected without action on both sides of the border, the systematic non-enforcement of rules established to protect Mexican workers against abuses by labor recruiters is a matter of serious concern.
Attacks on Worker Rights Defenders
Physical violence by authorities and employers against workers who seek to defend their rights is common in Mexico. Four members of the National Union of Mine and Metal Workers (Los Mineros) have been killed since 2006.45 No one has been charged in any of these cases. Santiago Rafael Cruz, an organizer for the Farm Labor Organizing Committee, was murdered in Monterrey on April 9, 2007. Three suspects are still at large.46
Mineros industrial actions have been repeatedly attacked by police and armed thugs.47 Violence has also been deployed against the independent Electrical Workers and Telephone Workers’ Unions and the Authentic Workers’ Front (FAT).48
In addition, non-governmental human rights groups that defend worker rights have been subjected to threats, surveillance and intimidation. The 2012 DOS Human Rights report notes that:
On May 31, the Worker Support Center (CAT) announced that it was obliged to cease all operations in the State of Puebla. The announcement came after the kidnapping and torture of CAT staffer Jose Enrique Morales Montano on May 15 and subsequent death threats made against CAT’s executive director Blanca Velásquez. The CAT had barely restarted its community and educational outreach with workers and families in early 2012, after the December 2010 ransacking of their offices and the January 2011 death threats against Velasquez, when Leobardo Soto, a federal deputy and Confederation of Mexican Workers (CTM) leader in Puebla, publicly blamed the CAT for labor unrest. Soto stated in the local press that all means, including violence, would be used to prevent the CAT from continuing its work. The CAT filed a complaint with the Attorney General’s Office, which opened an investigation into the incidents; however, by year’s end the investigation had not progressed significantly. Protective measures recommended by IACHR in 2011 for the CAT were renewed on May 29.
The NGO ProDESC, which works to defend the rights of communities and workers affected by multinational mining companies, has also been threatened and subjected to surveillance.49
Criminal Prosecution of Mineworkers Union
The GOM has carried out a systematic campaign of political persecution against the National Union of Mine, Metal and Steelworkers (Los Mineros), and its leader, Napoleón Gómez Urrutia since 2005. This campaign has included refusing to recognize Gómez as the union’s elected leader (until ordered to do so by the Supreme Court), freezing union bank accounts, declaring strikes illegal, and establishing company unions. The GOM filed criminal and civil charges against Gómez and other union officials, forcing him to flee to Canada where he currently resides.
The criminal charges against Gómez have been declared unconstitutional on five separate occasions by Mexican appellate courts.50 The GOM obtained a Red Notice from Interpol for Gómez’s arrest, but after an appeal to Interpol’s internal control commission (CCIF), all information relating to Gómez was ordered deleted from Interpol’s files because “the Commission considered that the information recorded concerning him raised strong doubts concerning its compliance with INTERPOL's rules.”
In August, 2014, the Fourth Collegiate Tribunal issued a definitive ruling exonerating Gómez.51 However, his bank accounts and property which were embargoed have not been returned, and the Government continues related litigation based on the same accusations. The Government has refused to give Gómez assurances that he can return to Mexico without facing further harassment.
Mexican Electrical Workers Union
On October 10, 2009, the GOM dissolved the electrical utility company Luz y Fuerza del Centro, eliminating the jobs of 44,000 workers represented by the Mexican Electrical Workers Union (SME).52 Approximately 16,000 of these workers refused to take severance pay and have mounted an organized campaign to demand that the government create new electrical power authority and re-hire the workers. The SME was able to reach agreement with the government to restore the pensions to its retired members, and just this week reached an agreement to operate 14 electrical generation plants as a cooperative.53
Attacks on independent teachers' unions
Since coming into office, the Peña Nieto government has made the subordination of Mexico's powerful teachers' unions, under the banner of "education reform," one of its priorities, with support from the business backed lobby group Mexico Primero. Last year the Congress passed reform legislation that subjected all teachers to dismissal if they failed to meet new testing requirements. The majority SNTE union has tied to work within the confines of the reform, but the dissident CNTE organization has strongly opposed the reform, holding mobilizations in many states. The government has recently begun a military operation against the CNTE in Oaxaca.54
Farmworker mobilization in San Quintin
Shortly after a Los Angeles Times series exposed child labor, debt peonage, exposure to pesticides and other health and safety violations at farms in the San Quintin valley in the state of Baja California that produce fruit and vegetables for the U.S. market,55 some 80,000 farmworkers struck in March 2015 to demand fair wages and the right to form independent unions.56 After serious repression in which many workers were injured and arrested, negotiations were convened under the auspices of the state government, resulting in a 14-point agreement.57 Implementation of the agreement has been slow, however, with workers reporting that they are being forced to work longer hours in exchange for higher pay.58
ILO Review of Labor Code Reform
On December 1, 2012, the GOM promulgated a major reform of the Federal Labor Law.59 The principal areas of reform concerned flexibilization of labour relations and transparency requirements for unions; the closed shop (“exclusion clause”) was also eliminated. The reform did not include proposed measures to limit the widespread practice of protection contracts. Specifically, the proposed Article 388 bis, which would have required ratification of collective bargaining agreements, was passed by the Senate but rejected by the Chamber of Deputies. Many other elements of the Mexican system of corporatist control of labor unions, such as the requirement that the labor authorities approve the results of union elections (“toma de nota”) and the limitation of unions’ representation rights to workers in specific industries (“radio de acción”) continue to operate in both law and practice.
Pursuant to a request from the UNT, an ITUC affiliate, the ILO DIALOGUE Department prepared comments on the reform. However, these were not submitted to the GOM as the reform had already been approved.
The ITUC-IndustriALL delegation asked the GOM to request ILO technical assistance. Labor Secretary Navarrete has made recent public statements to the effect that the GOM would welcome a technical opinion from the ILO on the labor reform’s consistency with the core Conventions. This would be an important step forward.
However, it is essential that an ILO review not be limited to implementation of the specific, limited changes enacted in the 2012 reform. Rather, this review should address the broader issues raised under all of the ILO supervisory mechanisms.60
Strengthening the NAALC mechanisms
While the precise relationship of the TPP labor clause and the NAALC remains to be determined, we believe that at a minimum the recommendations contained in the background paper prepared for the National Advisory Committee for Labor Provisions of Free Trade Agreements61 should be included as part of the Labor Action Plan. These recommendations include:
1) supporting the work of the U.S. National Administrative Office (NAO), especially in undertaking cooperative activities with its Canadian and Mexican counterparts;
2) reinvigorating the submissions process;
3) reviving the Secretariat from its state of suspended operations;
4) Heightening attention to migrant workers’ rights.
Strengthening the OECD National Contact Point
Along with TUAC, we share serious concerns about the Mexico National Contact Point (located in the Secretariat of the Economy).
Mexico is now perceived by the trade union movement to be a non-functioning NCP. So far the Mexican NCP has failed to do any problem-solving through mediation, as it has rejected out of hand all recent trade union cases presented to it in recent years. Moreover, the NCP seems to have gone out of its way to find grounds to reject eligible cases - even ones that have been accepted by other CSR complaints mechanisms. This attitude is especially worrying given that the Secretary General of the OECD is from Mexico.
Specific problems with the NCP include:
1. applying too high a threshold in the initial assessment of cases and the decision to accept or reject a case - this is key as it means that the Mexican NCP is not fulfilling its core function of bringing parties together for problem-solving;
2. failure to comply with the core principle of impartiality, as required under the Guidelines - there is evidence of bias in the NCP's treatment of information;
3. failure to cooperate with home country NCPs, as required under the Guidelines;
4. failure to publish procedures, which is contrary to the rules of the Guidelines and the core principles of accessibility and predictability.
In order to meet is commitments under the Guidelines, the Mexican NCP must: lower the threshold it has used in assessing eligibility of cases; develop a capacity for providing impartial mediation and conciliation; and publish its procedures.
1. See also Observation (CEACR) - adopted 2010, published 100th ILC session (2011), Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mexico (Ratification: 1950), http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:2326537:NO; Observation (CEACR) - adopted 2012, published 102nd ILC session (2013), Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Mexico (Ratification: 1961), http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3079532:NO; Observation (CEACR) - adopted 2012, published 102nd ILC session (2013), Worst Forms of Child Labour Convention, 1999 (No. 182) - Mexico (Ratification: 2000), http://www.ilo.org/dyn/normlex/en/f?p=1000:13100:0::NO:13100:P13100_COMMENT_ID:3085618:NO
The challenges to labor rights in Mexico are detailed in the 2010 USAID Mexico Labor Sector Analysis:
"Today, Mexicans have more choices in the marketplace and at the ballot box, but the positive impact of these choices is diluted by at least four challenges: (1) weak rule of law; (2) crisis of representation; (3) obstacles to competitiveness; and (4) highly inequitable distribution of economic gains. These challenges are especially acute in the labor sector, which continues to operate under many of the same rules, incentive structures, and leaders as before the dual transition. If progress on these fronts can be made in the labor sector, there should be valuable spill-over effects for the rest of Mexican society.
"One of the most persistent legacies of Mexico’s dominant-party regime is the lack of effective and efficient institutions for upholding the rule of law. Although the balance of power among the executive, legislative, and judicial branches has changed dramatically in Mexico since the PRI began to lose its grip on the political system in the 1980s, the judiciary and law enforcement agencies continue to be plagued by inefficiency, corruption, and the arbitrary exercise of authority. Many of these same problems plague Mexico’s labor sector, resulting in violations of labor rights, inadequate access to labor justice, and serious obstacles to the modernization and democratization of the labor movement. The development of stronger mechanisms of transparency, accountability, and enforcement in the labor sector would not only limit the opportunities for malfeasance and enable workers to defend their rights more effectively, but would also have implications for the rule of law more generally.
"Another challenge that has not been resolved by Mexico’s market opening or transition to a more robust multiparty system is a serious crisis of representation in institutions that are supposed to provide intermediation between leaders and their constituent bases. While Mexico’s elections are much more free and fair than in the past, they still serve as inadequate mechanisms of representation, largely because of the persistence of clientelism and the many failings of Mexico’s political parties. The crisis of representation is even more severe in the labor movement, both within labor organizations and among workers in general. Lacking a meaningful “voice” in either the political arena or the labor sector, workers are highly susceptible to less democratic forms of interest intermediation (if not outright coercion). The persistence of these practices and power relations in the labor movement constitutes a major gap in Mexico’s democracy and speaks to a broader need to democratize the institutions as well as the procedures of democratic governance.
"A third critical challenge is Mexico’s inadequate adaptation to the pressures of a more competitive, globalized economy. Although the country’s protective labor regulations have contributed to this outcome, more significant obstacles include inadequate investment in infrastructure and human capital, a lack of innovation and upgrading, weak sectoral policy, concentration of ownership, and widespread corruption. The failure to overcome these obstacles is related to (1) an over-reliance on low wages to promote competitiveness; and (2) insufficient attention to the perverse incentives created by Mexico’s de facto weak protections for workers. In combination with appropriate government policies and changes in union culture, a stronger voice for labor could force companies to remain competitive by improving quality and efficiency rather than holding down wages. In the process, it would encourage employers to share the costs of investing in human capital, innovation, and upgrading, thereby easing the burden on the state.
"A fourth challenge is Mexico’s highly inequitable distribution of income, which affects not only economic well-being but also access to social and political resources. Historically, Mexico’s labor institutions have had an ambiguous impact on income distribution. While they helped raise the standard of living of thousands of workers, they also created a labor aristocracy that enjoyed privileged access to well-paying jobs and good benefits. In some key sectors, union jobs are still hereditary or for sale. This “insider unionism” has gotten worse in the face of economic crisis and declining rates of union membership, as union leaders and unionized workers cling jealously to their remaining privileges, using their wealth and political positions for pro-union purposes. Although the democratization of the labor movement would not immediately lead to more equitable conditions for workers, it would expand access to collective rights which, especially if combined with a cultural shift among workers towards demanding their rights and greater engagement in solidaristic activities, could create more favorable conditions for improving the living standards of workers currently excluded from the labor aristocracy."
US Agency for International Development. The Labor Sector and U.S. Foreign Assistance Goals – Mexico Labor Sector Assessment. January 2010.
2. See US National Administrative Office reports of public review for public submissions 940003 (Sony), 9702 (Han Young), 9703 (Itapsa).
3. María Xelhuantzi López, LA DEMOCRACIA PENDIENTE: La libertad de asociación sindical y los contratos de protección en México, Sindicato de Telefonistas de la República Mexicana, 2000; José Alfonso Bouzas Ortiz y Aleida Hernández Cervantes, CONTRATACIÓN COLECTIVA DE PROTECCIÓN EN MÉXICO: Informe a la Organización Regional Interamericana de Trabajadores (ORIT), 2007, http://www.frecuencialaboral.com/contratosdeproteccion.html; José Alfonso Bouzas Ortiz (Coordinador) EVALUACIÓN DE LA CONTRATACIÓN COLECTIVA EN EL DISTRITO FEDERAL, Friedrich Ebert Foundation, 2009, http://www.democraciaylibertadsindical.org.mx/media_files/LIBRO_BOUZAS.pdf; Carlos de Buen Unna, Collective bargaining agreements for employewr protection (“protection contracts”) in Mexico, Friedrich Ebert Foundation, 2011, http://www.democraciaylibertadsindical.org.mx/media_files/Paper_Charles_De_Buen.pdf.
4. E.g. Worker Rights Consortium, VIOLATIONS OF INTERNATIONAL LABOR STANDARDS AT ARNESES Y ACCESORIOS DE MEXICO, S.A. DE C.V. (PKC GROUP), 18 June 2013, http://workersrights.org/Freports/WRC%20Findings%20and%20Recommendations%20re%20Arneses%20y%20Accesorios%20de%20Mexico%2006.18.13.pdf; Centro de Reflexión y Acción Laboral, After the Reform: Fifth report about the labor conditions of Mexico´s electronics industry, August 2013, http://cerealgdl.org/images/informes/CEREAL_report_2013.pdf.
5. 104th Session of the International Labor Conference, June 2015, Committee on the Application ofStandards. Statement of the United States Government. Mexico – Convention 87.
6 CEREAL, XVII Informe de Violaciones a los Derechos Humanos Laborales (2013), pp. 64-67, http://www.fomento.org.mx/novedades/XVII_DHL_CEREAL2013.pdf
7 Sindicato no reconocido gana round en Honda, El Economista, 25 November 2014, http://eleconomista.com.mx/estados/2014/11/25/sindicato-no-reconocido-gana-round-honda
8 Tim Steller, New Union in Place in Cananea Mine, Arizona Daily Star, 10 June 2011.
9 Descubren mineros que pertenecían a sindicato que no existe y son despedidos, soycobre.com, 22 May 2014; Muere joven en mina de Cananea, El Imparcial, 23 November 2012, http://www.elimparcial.com/EdicionEnLinea/Notas/Policiaca/23112012/642838.aspx; Ofrecen conferenciade prensa Mina, CTM y Terceras, piden regresar a laborar, soycobre.com, 22 August 2014 ,http://www.soycobre.com/2014/08/ofrecen-conferencia-de-prensa-mina-ctm-y-terceras-piden-regresar-alaborar/
10 Utilidades provocan revuela en Cananea, Excélsior, 25 May 2015,http://www.excelsior.com.mx/nacional/2015/05/25/1025879
11 Mexico: Important legal victory for auto workers, http://www.industriall-union.org/mexico-importantlegal-victory-for-autoworkers
12 Worker Rights Consortium, VIOLATIONS OF INTERNATIONAL LABOR STANDARDS AT ARNESES Y ACCESORIOS DE MEXICO, S.A. DE C.V. (PKC GROUP), 18 June 2013,http://workersrights.org/Freports/WRC%20Findings%20and%20Recommendations%20re%20Arneses%20y%20Accesorios%20de%20Mexico%2006.18.13.pdf
13 Fin a paro en Teksid; avanza grupo minero, Zócalo, 23 April 2014, http://www.zocalo.com.mx/seccion/articulo/fin-a-paro-en-teksid-avanza-grupo-minero-1398238072; Ahora para Gunderson; amenaza con dejar a la CTM, Zócalo, 30 April 2014, http://www.zocalo.com.mx/seccion/articulo/ahora-para-gunderson-1398843310 ; Ahora paran 400 obreros de Pytco, 3 May 2014, http://www.zocalo.com.mx/seccion/articulo/ahora-paran-400-obreros-depytco-1399102101
14 Piden aplicar ley contra el Presidente de la JLCyA, El Tiempo, 29 October 2014,http://www.periodicoeltiempo.mx/index.php?option=com_content&view=article&id=96652:piden-aplicar-ley-contra-el-presidente-de-la-jlcy-a&catid=119:gobierno-y-politica&Itemid=728
15 Continúan represalias en GUNDERSON, El Tiempo, 6 August 2014, http://periodicoeltiempo.mx/index.php?option=com_content&view=article&id=92066:continuanrepresalias-en-gunderson&catid=119:gobierno-y-politica&Itemid=728
16 IndustriALL, CTM goons viciously assault Mexican miners’ organizer, http://www.industriallunion.org/ctm-goons-viciously-assault-mexican-miners-organizer
17 Acapará CTM contratos en Teksid y Gunderson, Zócalo, 6 August 2014, http://www.zocalo.com.mx/seccion/articulo/acapara-ctm-contratos-en-teksid-y-gunderson-1407307106
18 Alejandro Sánchez, Salim Kalkach se especializa en sofocar disidencia, Excélsior, 8 junio 2008
19 Hard won victory for workers at Vidriera de San Potosí in Mexico, IndustriALL, 10 April, 2014, http://www.industriall-union.org/hard-won-victory-for-workers-at-vidriera-de-san-potosi-in-mexico; Desacata Vidriera del Potosí orden de reinstalación de 33 trabajadores, El Heraldo, 28 October 2014, http://elheraldoslp.com.mx/2014/10/28/desacata-vidriera-del-potosi-orden-de-reinstalacion-de-33-trabajadores/
20 ILO CFA, case no. 2694. See also cases 2393, 2478 and 2919.
21 Fair Labor Association, Freedom of Association: Monitoring Against Protection Contracts in Mexico, 14 February 2012, http://www.fairlabor.org/sites/default/files/freedom_of_association__mexico.pdf.
22 UNT document, 16 August 2013.
23 See ILO CFA, 370th Report, para. 540 (Mexico, case no. 2694); Luis Emilio Giménez Cacho, Latransparencia sindical, otra larga marcha, Friedrich Ebert Foundation, July 2013,http://rendiciondecuentas.org.mx/wp-content/uploads/2013/10/La-transparencia-sindical-GimenezCacho.pdf
24 Compare, e.g., NATIONAL LABOR RELATIONS BOARD, CASE HANDLING MANUAL, PART TWO: REPRESENTATION PROCEEDINGS. https://www.nlrb.gov/sites/default/files/attachments/basicpage/node-1727/chm2.pdf
25 Worker Rights Consortium, VIOLATIONS OF INTERNATIONAL LABOR STANDARDS AT ARNESESY ACCESORIOS DE MEXICO, S.A. DE C.V. (PKC GROUP), 18 June 2013, http://workersrights.org/Freports/WRC%20Findings%20and%20Recommendations%20re%20Arneses%20y%20Accesorios%20de%20Mexico%2006.18.13.pdf
26 Graciela Bensusãn & Arturo Alcalde, El sistema de justicia laboral en México: situación actual y perspectivas (June 2013), http://www.fesmex.org/common/Documentos/Libros/Paper_AP_Justicia_Laboral_Bensusan-Alcalde_Jun2013.pdf; US National Administrative Office, public review of submission 9703 (Itapsa) (evidence “raises questions about the impartiality of the CAB and the fairness, equitableness and transparency of its proceedings and decisions); public review of submission 9702 (Han Young); Julie M.Wilson, “Mexican Arbitral Corruption and the North American Agreement on Labor Cooperation: A Case Study.” Swords & Ploughshares: A Journal of International Affairs 12, no. 1 (Spring 2003): 61-77; Adam Bookman & Jeffrey K. Staton, A Political Narrative of Mexican Labour Arbitration Boards and Legal Strategies. Paper prepared for presentation at the Conference on the Scientific Study of Judicial Politics.Texas A&M. October 21-23. Political Science Working Paper #375; Also see the sources cited in n. 22 infra. It has been suggested that the Boards can be made more efficient by adopting oral procedures. See Instituto Mexicano para la Competitividad, Por una mejor justicia laboral (2014). However, it has been reported that in some labor boards the recordings of these proceedings are being used to bring criminal complaints against workers and their attorneys. Manuel Fuentes Muñiz, La justicia laboral deembudo, 1 July 2014, http://manuelfuentesmuniz.blogspot.com/2014/07/la-justicia-laboral-de-embudo-lasilla.html.
27 Centro de Investigación y Docencia Económicas (CIDE), Informe de resultados de los Foros de Justicia Cotidiana, Abril 2015, pp. 150-151, http://justiciacotidiana.mx/work/models/JusticiaCotidiana/Resource/101/1/images/Documento_JusticiaCotidiana_VoBo_270415.pdf. See Arturo Alcalde Justiniani, La simulación del tripartismo en México, LaJornada, 25 julio 2015, http://www.jornada.unam.mx/2015/07/25/opinion/014a2pol
28 104th Session of the International Labor Conference, June 2015, Committee on the Application of Standards. Statement of the United States Government. Mexico – Convention 87.
29 See US National Administrative Office, public reports of review for public submissions 940003 (Sony), 2003-01 (Puebla), 2005-03 (Hidalgo).
30 See ILO CFA cases 2282, 2346, 2347, 2393.
31 SINDICATO DE TRABAJADORES UNIDOS DE HONDA DE MEXICO BOLETIN DE PRENSA, miércoles 29 de junio de 2011, http://www.democraciaylibertadsindical.org.mx/index.php?option=com_content&view=article&id=126:ladireccion-de-registro-de-asociaciones-de-la-stps-mutilo-expediente-del-stuhm-para-negar-toma-denota&catid=8:denuncia-de-caso&Itemid=13
32 REGLAMENTO Interior de la Secretaría del Trabajo y Previsión Social, Diario Oficial, Viernes 14 denoviembre de 2008, Art. 20, para. III.
33 Mexico. Suprema Corte de Justicia de la Nación. Amparo en revision 67/2010, 2 de mayo de 2012.
34 See Secretaria Auxiliar de Conflictos Colectivos, Junta Especial Numero Quince, Expediente Numero:IV·54J2012. Sindicato Naclonal de Trabajadores Mineros, Metalurgicos, Siderurgicos y Similares de laRepublica Mexlcana vs. Arneses y Accesorlos de Mexico, S. de R.L. de C.V. y Sindicato Nacional de Trabajadores de la Industria Metal·Mecanica, Sidero-Metalurgica, Automotriz y Proveedoras de Autopartes en General,sus Derivados y Similares de la Republica Mexlcana, "Miguel Trujillo López," February 20, 2012 (denying Mineworker union’s demand for control of contract (titularidad) on the grounds that a union of mine, metal and steelworkers cannot represent workers in other branches o findustry).
35 See ILO CFA cases 2115, 2207, 2308.
36 See, e.g., Notifican a los trabajadores de Calzado Sandak la inexistencia de la huelga, http://www.jornada.unam.mx/2012/08/15/politica/021n1pol
37 Irrevocable, fin de relación laboral entre mineros y GMéxico,http://eleconomista.com.mx/sociedad/2010/04/21/irrevocable-fin-relacion-laboral-entre-mineros-gmexico
38 Suprema Corte de Justicia de la Nación, Amparo en Revisión 689/2011 (7 nov. 2012); Arturo Alcalde Justiniani, El derecho de huelga, en riesgo, http://www.jornada.unam.mx/2012/03/10/politica/018a1pol.
39 David S. Kaplan, Joyce Sadka & Jorge Luis Silva-Mendez, Litigation and Settlement: New Evidencefrom Labor Courts in Mexico. World Bank Policy Research Working Paper 4434 (December 2007). http://elibrary.worldbank.org/doi/pdf/10.1596/1813-9450-4434; David S. Kaplan & Joyce Sadka, Enforceability of Labor Law: Evidence from a Labor Court in Mexico. Policy World Bank Policy ResearchWorking Paper 4483 (January 2008), http://elibrary.worldbank.org/doi/pdf/10.1596/1813-9450-4483.
40 International Transport Workers Federation. Campeche Basin: Paradigm of Labour Exploitation (2009) http://www.itfseafarers.org/files/extranet/-1/18302/Camepeche_Basin.pdf; Kent Paterson, Temping DownLabor Rights: The Manpowerization of Mexico (Jan. 10, 2010), http://www.corpwatch.org/article.php?id=15496; Labor Outsourcing Rises in Ciudad Juarez (Apr. 13, 2013), http://fnsnews.nmsu.edu/labor-outsourcing-rises-in-ciudad-juarez/
41 Insuficiente, la regulación para poner orden en el ‘outsourcing’ El Financiero, August 19, 2015,http://www.elfinanciero.com.mx/economia/insuficiente-la-regulacion-para-poner-orden-en-eloutsourcing.html
42 Report of the Committee set up to examine the representation alleging non-observance by the Government of Mexico of the Labour Administration Convention, 1978 (No. 150), the Occupational Safety and Health Convention, 1981 (No. 155), and the Chemicals Convention, 1990 (No. 170), made under article 24 of the ILO Constitution, http://www.ilo.org/dyn/normlex/en/f?p=1000:50012:0::NO:50012:P50012_COMPLAINT_PROCEDURE_ID,P50012_LANG_CODE:2507359,en:NO
43 See CEREAL, Siglo XXI: El martirio en las minas del carbon: VI Informe PASTA DE CONCHOS 2012,http://www.fomento.org.mx/novedades/6to_PC.pdf; International Labour Conference, 102nd Session,(2013), Report of the Committee of Experts on the Application of Conventions and Recommendations.C.155, pp. 736-740. http://www.ilo.org/public/libdoc/ilo/P/09661/09661(2013-102-1A).pdf. The inadequacy of Mexico’s health and safety inspections has also been detailed in cases under the NAALC,e.g. US National Administrative Office, public reports of review for cases 9702-II (Han Young), 2000-01 (Custom Trim/Auto Trim).
44 See AFL-CIO Solidarity Center, Roles for Workers and Unions in Regulating Labor Recruitment inMexico, http://www.solidaritycenter.org/wp-content/uploads/2015/05/Migration.Roles-for-Workers-and-Unions-in-Regulating-labor-Recruitment-in-Mexico.Jennifer-Gordon-Fordham.5.15.pdf; Centro de losDerechos del Migrante, Inc., Recruitment Revealed: Fundamental Flaws in the H-2 Temporary WorkerProgram and Recommendations for Change (2013), http://www.cdmigrante.org/wpcontent/uploads/2013/01/Recruitment-Revealed_Fundamental-Flaws-in-the-H-2-Temporary-Worker-Program-and-Recommendations-for-Change.pdf; Global Workers Justice Alliance, El Artículo 28 de laLey Federal del Trabajo vigente en México:¿Protege o no a los mexicanos? (2012), http://www.globalworkers.org/sites/default/files/Informe%20Art%2028.pdf;
45 ILO CFA Case No. 2694; Mexico, Comisión Nacional de los Derechos Humanos, Recomendación No.37 (2006) Sobre el caso de los hechos de violencia suscitados, el 20 de abril de 2006, en Lázaro Cárdenas,Michoacán,http://www.cndh.org.mx/sites/all/fuentes/documentos/Recomendaciones/2006/REC_2006_037.pdf
46 AFL-CIO 2013 Convention, Resolution 47: Justice for Santiago Rafael Cruz, http://www.aflcio.org/About/Exec-Council/Conventions/2013/Resolutions-and-Amendments/Resolution-47-Justice-for-Santiago-Rafael-Cruz
47 La Policía Federal toma posesión de la minera Cananea en Sonora,http://mexico.cnn.com/nacional/2010/06/07/la-policia-federal-toma-posesion-de-la-minera-cananea-ensonora;Policías federales ocupan complejo minero La Fundidora, en Nacozari,http://www.jornada.unam.mx/2010/09/02/politica/021n1pol; Irrumpen Denuncian mineros en huelgaintento de desalojo en Sombrerete, http://www.zocalo.com.mx/seccion/articulo/denuncian-mineros-enhuelga-intento-de-desalojo-en-sombrerete; Ejército y policías en mina de Durango, denuncian sindicato yONG, http://www.jornada.unam.mx/2012/08/30/politica/021n1pol; Agreden a trabajadores de la Mina 7 deMINOSA en Coahuila, http://www.industriall-union.org/node/2902; Intentan desalojar a mineros paristasen Zacatecas; hay decenas de heridos,http://www.jornada.unam.mx/2013/06/01/index.php?section=estados&article=029n3est; CTM goonsviciously assault Mexican miners’ organizer, http://www.industriall-union.org/ctm-goons-viciously-assaultmexican-miners-organizer.
48 Sindicato Mexicano de Electricistas, Public Communication under the North American Agreement onLabor Cooperation (Nov. 4, 2011) pp. 5-6, http://www.dol.gov/ilab/programs/otla/MexicoSubmission2011.pdf; ILO CFA Case No. 2919 (Atento),Report Report No 368, June 2013; LA LUCHA DE LA CENTRAL DE ABASTOS,
49 URGENT ACTION: Arbitrary Detention of Members of the Community of Ejido La Sierrita Two Daysbefore Agrarian Court Hearing against Canadian Mining Company Excellon (Nov. 11, 2013), http://www.prodesc.org.mx/en/?p=668.
50 Fraudulent administration (San Luis Potosí), Tribunal Superior de Justicia del Distrito Federal, 2d Chamber (File 550/2009), 9 September 2009; Fraudulent administration (Sonora), Tribunal Superior deJusticia del Distrito Federal, 9th Chamber (File 706/2009), 6 January 2010; Fraudulent administration(Nuevo León), Tribunal Superior de Justicia del Distrito Federal, 3rd Chamber (File 736/2010), 28 April2011; Violation of Article 113 bis of the Federal Banking and Credit Law, Fourth Collegiate Tribunal (File187/2009), 28 April 2011; Violation of Article 113 bis of the Federal Banking and Credit Law, Fourth Collegiate Tribunal (File 261/2011), 19 June 2012. Based on the identical facts, the government also charged Gómez with money laundering in violation of Article 400 of the Federal Banking and Credit Law,finally abandoning the charge after it was thrown out by four appeals courts. First Collegiate Tribunal(File R.P. 94/2009), 13 August 2009; Seventh Collegiate Tribunal (File 3/2010), 25 February 2010; First Collegiate Tribunal (File R.P. 99/2010), 14 December 2010; First Collegiate Tribunal (File 244/2010), 24 July 2011.
51 Mexican Court Drops Criminal Charges Against Union Leader, Wall Street Journal, Aug. 29, 2014, http://www.wsj.com/articles/mexican-court-drops-charges-against-union-leader-napoleon-gomez-urrutia-1409353670
52 See SME Public Communication under the NAALC, http://www.dol.gov/ilab/programs/otla/MexicoSubmission2011.pdf.
53 Resurge el SME, ahora como cooperativa, Excélsior, Aug. 19, 2015,http://www.excelsior.com.mx/nacional/2015/08/19/1041050
54 Wall Street Journal, Mexico Takes On Militant Teachers in Oaxaca, Aug. 19, 2015, http://www.wsj.com/articles/mexico-takes-on-militant-teachers-in-oaxaca-1440026579
55 Richard Marosi, Product of Mexico, Los Angeles Times, http://graphics.latimes.com/product-of-mexicocamps/
56 Dozens injured as farmworkers, police clash in Baja California, Los Angeles Times, May 9, 2015,http://www.latimes.com/world/mexico-americas/la-fg-baja-farmworkers-20150509-story.html
57 Baja farmworkers win raises, benefits in landmark deal, Los Angeles Times, June 5, 2015, http://www.latimes.com/world/mexico-americas/la-fg-baja-farm-labor-20150604-story.html
58 Kau Sirenio Pioquinto, Slave in the Fields: A Reporter Goes Undercover in the San Quintin Valley, Jul.25, 2015, http://www.truth-out.org/news/item/32013-slave-in-the-fields-a-reporter-goes-undercover-in-thesan-quintin-valley
60 It should also be noted that the Mexican labor authorities have recently indicated that there is no longer a legal impediment to ratification of ILO C.98 and they are willing to submit it to the Congress for ratification.
61 National Advisory Committee for Labor Provisions of Free Trade Agreements (NAC), Background paper on NAFTA and the NAALC, September 27, 2012.