Informe definitivo - Informe núm. 129, 1972

1. 74. The Committee examined this complaint at its meeting in November 1970, when it submitted an interim report appearing in paragraphs 58 to 73 of its 121st Report, which was approved by the Governing Body at its 182nd Session (March 1971). In this report, the Committee requested the Government to supply certain further information.
2. 75. The Government sent further information relating to the case in two communications dated 4 May 1971 and 4 February 1972.
3. 76. 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. A. The complainants' allegations

1. 77. In the light of all the information received by the Committee and, in particular, the text of the judgements communicated by the Government, the case may be summarised as follows.
2. 78. 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 had 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 (CTM), and a collective agreement, concluded between this new union and the firm, was filed with the Board on the same day.
3. 79. On 23 June, the Board nevertheless arranged a meeting, which was attended by the Staff Union of Embotelladora del Norte SA and the management. On the following day a count was made with the help of the Board, as required by law, of the workers in favour of the strike including those 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.
4. 80. 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.
5. 81. 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.

B. B. The Committee's conclusions

1. 82. The Committee does not consider that it is 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 has already drawn 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 should 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.
2. 83. The Committee notes 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 this 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.
3. 84. The Committee considers that all these facts clearly indicate 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 is plainly an act of antiunion discrimination by the firm and the Committee regrets that the authorities have not taken, or have not been able to take, the necessary steps to protect the workers and the trade union concerned.