VII.CASE STUDIES

The following eight cases illustrate the violations described above.The accounts in this chapter are based on testimony from workers, union leaders and organizers, labor lawyers, non-governmental organization representatives, labor court judges, representatives from the government's Human Rights Ombudsman's Office, and current and former Ministry of Labor officials.In each case, Human Rights Watch also solicited employer responses to the allegations of workers' human rights abuses.We were not granted the meetings we requested.And, as noted below, only one of the employers responded to letters that we mailed and faxed seeking their views.[123]When we were able to obtain public documents setting forth employer views, we have included them here.

Four of the eight cases profiled here are from the manufacturing sector and four from the service sector.The manufacturing cases all involve export companies, and three of the four involve textile maquilas that operated in the country's free trade zones and sent goods primarily to the United States.[124]Factories like these could take advantage of commercial and tariff benefits ultimately included in CAFTA.Of the four service industry cases, two involve formerly public sector industries-electric and telecommunications-that, since 1996, have opened to private-sector participation;[125] the other two involve public enterprises-the airport and social security facilities-forwhich privatization has been proposed by the government but forcefully opposed by workers.Human Rights Watch takes no position on privatization per se but is concerned about the alleged abuses of workers' human rights in these four cases.

The problems discussed below are representative of the many similar cases that unfold in El Salvador each year in which workers suffer labor rights violations and repeatedly and unsuccessfully seek legal redress with the Labor Ministry and/or labor courts.The cumulative effect of the multiple abuses and the government's inadequate response is that, at every turn, workers' attempts to exercise their human rights are thwarted.[126]

Lido, S.A. de C.V.

If you want to keep your job, you shouldn't assert your rights. . . .The company threw us in the street without anything and said that if we thought we had rights, we should complain to the Ministry of Labor.

-Julio Cesar Bonilla, third secretary of conflicts, Union of Lido Workers (SELSA).[127]

Incorporated in 1953, Lido is one of five factories founded and owned by the Molina Martnez family that produces bread and dessert products under the brand name "Lido."[128]Since January 2002, Lido has reportedly violated workers' right to organize by firing union members and leaders, pressuring union members to renounce their union membership, and demanding that fired union members tender resignations and liability waivers before collecting their severance pay.The Labor Ministry's response has included, without explanation, favoring an inspection petition from the employer over one submitted by the workers, failing to investigate allegations of anti-union intimidation, and honoring illegal employer requests that payments due to workers be conditioned on workers' waiver of legal rights.

In May 2001, SELSA negotiated a collective bargaining agreement with Lido, clause 43 of which requires the employer "to review its salary tables annually, during the last two weeks of January, so that the agreed upon increase takes effect as of the following February 6."Clause 56 similarly states, "There will be an annual review of salaries."[129]During that time, most Lido workers' salaries were between U.S. $233 and U.S. $295 per month, based on forty-four hour workweeks.[130]

When workers notified Lido in November 2001 that they would expect a salary review in 2002, Lido's managers argued that because one year had not yet passed since the agreement was reached, the company was not required to review workers' salaries.[131]On November 20, 2001, workers initiated the administrative dispute resolution procedures established by the Labor Code to resolve such disagreements.[132]By the end of February, direct worker-employer negotiations had failed, and, by May, Labor Ministry-facilitated mediation had also failed, as Lido maintained its refusal to negotiate salaries in 2002.[133]

On May 6, 2002, largely in response to the failed attempts to negotiate raises and Lido's alleged refusal to submit to Labor Ministry-facilitated arbitration, roughly 320 of the approximately 350 Lido workers engaged in a one-day work stoppage.[134]Over the next three days, from May 7 through May 9, 2002, Lido barred forty-one union members from work, eleven of whom were union leaders.Thirty-six members were barred on May 7, four on May 8, and one on May 9.[135]In the eyes of the law, these workers had been fired, as the Labor Code establishes that, unless a suspension or work interruption has been declared, employees are presumed dismissed if they are not allowed into the workplace during their scheduled shifts.[136]

The workers reportedly learned of their de facto dismissals from security guards, who informed them that they were not allowed to enter the worksite.The guards reportedly provided no justification for their actions, saying only that they "had orders."[137]Nonetheless, Lido's general manager, Roberto Quinez, later explained to a labor inspector:

On May 6, 2002, [workers] were asked who wanted to work and who supported the action of the union [the work stoppage], the latter being those who would not be allowed to enter [the workplace]. . . .[T]he 41 workers [can] make use of their labor rights and file corresponding actions before the competent authorities, as no possibility exists of their reinstallation.[138]

The ILO Committee on Freedom of Association later reviewed the case and stated that "the Committee cannot rule out the possibility that the dismissals were carried out in reprisal for the protest measure undertaken by the workers, which would be a serious violation of freedom of association."[139]

On May 7, 2002, when the employer first barred thirty-six union members, including all of the union's leaders, from the workplace, several union leaders went to the Ministry of Labor to request a labor inspection to determine whether the employer's action was legal.[140]They were told that inspectors were currently unavailable but would be sent that afternoon; they did not arrive.[141]The fired Lido workers were only able to get a response after they went to the Human Rights Ombudsman's Office the following day to request that delegates accompany them to the Labor Inspectorate.[142]The presence of the ombudsman's representatives apparently expedited the process, and an inspector was assigned to the case.[143]In contrast, when Lido's legal representative arrived at the Ministry of Labor on the morning of May 6, 2002, to request an inspection regarding the one-day work stoppage, the Labor Inspectorate reportedly attended to him immediately, ordering two inspectors to leave with him in his car to conduct the worksite inspection.[144]

The May 8 inspection verified that, as of that date, forty SELSA members, including all eleven leaders, had been barred from entering the workplace.[145]The inspector made no finding, however, regarding the legality of these de facto dismissals.[146]In a subsequent inspection on the same issue on June 6, 2002, the labor inspector again failed to rule.Instead the inspector stated that, with respect to any moneys owed to the forty-one workers barred from Lido, "this inspector recommends that these [workers] file a new labor complaint specifying the [amounts] owed, as well as the salary of each of them, because from the records provided by the Employer Representative, he did not determine precisely the average salary of each worker affected."[147]

The forty-one fired workers also filed individual claims before the labor courts against Lido for unjustified dismissal and initiated mediation before the Labor Directorate. [148] During the judicial conciliation process in July and August 2002, when the judge, acting as mediator, called the parties together to facilitate an amicable resolution, [149] Lido offered the thirty union members 100 percent of the severance due for dismissal without cause.However, the offer was contingent on workers signing resignations and waiving all claims against the company. [150] The workers accepted the agreement and tendered liability waivers and resignations that they were required to sign before the labor courts prior to receiving their payments. [151] Lido also offered to pay the eleven union leaders their salaries and benefits due under the Labor Code until their protected periods expired, reiterating a similar offer made during mediation before the Labor Directorate. [152] The company refused, however, to pay additional benefits legally due under the collective bargaining agreement or reinstate the eleven union leaders, as SELSA's lawyer had requested. [153] The union leaders accepted the agreement, which Lido has reportedly upheld. [154] One of the eleven union leaders commented on Lido's actions, saying, "The goal of the company is that the union cease to exist. . . .The workers are afraid. . . .They are afraid because the union leaders are outside.When we were inside, we intervened if they were denied permission to use the bathroom." [155]

Between October 14 and November 4, 2002, Lido reportedly fired twenty-two more union members, including three former union leaders.[156]According to a lawyer for the workers, each worker was told by a security guard that she was fired and should to go to the Labor Inspectorate to claim her severance pay.[157]Upon arriving at the Labor Inspectorate, the workers were reportedly informed that they must sign receipts and statements of resignation, with liability waivers, drafted by Lido, before they could receive their severance pay.[158]Sixteen workers reportedly did so without question.But a group of six reportedly refused to sign the resignations and called their lawyer.[159]

The Labor Inspectorate reportedly told the lawyer for the six that the workers could receive the money even if they presented alternative receipts containing statements that they were fired and had not resigned.[160]But when the six workers returned to the Labor Inspectorate with the alternative receipts, prepared by their lawyer, the Inspectorate reportedly rejected them.Instead, the Labor Inspectorate insisted that the workers sign the employer-provided resignations and liability waivers.[161]As had happened with their co-workers several months earlier, the workers signed the resignations under economic duress.The workers' lawyer explained to Human Rights Watch, "I told them that they had the right not to sign because of the anti-union effects of the forced resignations, but they said that they needed the money, and they accepted, under pressure from the Ministry of Labor."[162]

By requiring the twenty-two union members to sign employer-drafted resignation papers and waive all claims against the employer as a condition for receipt of their severance pay, the Ministry of Labor helped Lido circumvent legal protections.[163]The general secretary of SELSA commented, "We consider that . . . [the Ministry of Labor] is collaborating with the company so that the union will cease to legally exist, as it made them [fired workers] sign papers that said that they resigned voluntarily and were not unjustly fired."[164]

In total, Lido fired eleven union leaders and fifty-two union members in May 2002 and between October 14 and November 4, 2002.All of the fired union members signed resignations and liability waivers-thirty during labor court-facilitated mediation and twenty-two under pressure from the Ministry of Labor.With these resignations tendered and legal claims waived, Lido cannot be fined for illegal anti-union firings nor for illegally dismissing union members to destroy their union.

Management has also reportedly threatened dismissal if workers do not renounce their union membership-with the already fired union members serving as examples.[165]According to SELSA's general secretary, these tactics have lead to the renunciation of union membership by roughly twenty-six additional individuals.[166]Lido has denied pressuring workers to resign from SELSA and claims that those who resigned did so voluntarily.[167]

Workers brought the alleged union member intimidation by Lido management to the attention of the Labor Directorate on June 14, 2002, but the Ministry of Labor reportedly has yet to investigate as of this writing.[168]In a recent ruling on this case, the ILO Committee on Freedom of Association explicitly requested "the Government to undertake an investigation and, should the allegations be substantiated, to take measures against those responsible for such actions so as to prevent them from reoccurring in the future."[169]

Human Rights Watch repeatedly contacted Lido during our investigation in El Salvador to request a meeting with a management representative who could provide information on the labor conflict described above.We contacted the company by telephone no less than twelve times between February 11 and February 18, 2003, and sent a fax request for a meeting, but to no avail; each time we were told that no meeting could be scheduled.On June 30 and July 2, 2003, Human Rights Watch mailed and faxed, respectively, inquiries regarding the above-described labor conflict to Lido.At this writing, we have received no response.

Confecciones Ninos,S.A. de C.V.

In February 2001, ConfeccionesNinos, a textile factory in the San Marcos Free Trade Zone, employed close to three hundred workers, most between the ages of eighteen and thirty and roughly 95 percent of whom were women.[170]ConfeccionesNinos opened in April 1993 and was founded, owned, and operated by General Juan Orlando Zepeda, a retired army general.[171]

ConfeccionesNinos workers began an organizing drive in March 2001, in response to alleged delays in salary payments; failure to pay overtime; failure to provide legally mandated annual paid vacations; "bad treatment in word and deed"; failure to grant permission for doctors' visits; unattainable production goals; limited use of restroom facilities; and other alleged problems.[172]As detailed below, the employer reportedly responded to organizing efforts with anti-union activity, including pressuring union members to deny they attended the union's founding assembly, inaccurately describing a union member on maternity leave as no longer a company employee, and telephoning union leaders to demand they renounce union membership.

The company succeeded in thwarting workers' efforts to organize, as the Labor Ministry accepted the employer's account of events without independently investigating or soliciting worker responses.Workers' attempts to gain legal redress for alleged labor law violations were also frustrated when the Labor Ministry refused to rule on the legality of employer suspensions, initiated in late September 2001, and a labor court failed to enforce a judgment rendered in workers' favor.

ConfeccionesNinos workers held a founding assembly for the Union of ConfeccionesNinos Workers (SITRACON) on August 25, 2001, during which they adopted a founding document, setting forth members' names and designating provisional leadership, and approved union governing statutes, in compliance with the relevant law.[173]Forty workers reportedly attended, five more than the mandatory minimum required for union formation, and signed the founding document and governing statutes, which were notarized.[174]On September 3, 2001, workers submitted to the Ministry of Labor their official request to register SITRACON.[175]

As required by Salvadoran law, after receiving the workers' union registration petition on September 3, 2001, and administrative corrections on September 10, 2001, the Ministry of Labor notified ConfeccionesNinos.The factory had five days to certify whether the members of the new union were its employees.Under Salvadoran law, employer silence is to be construed as confirming workers' employment.[176]Nonetheless, on October 12, relying largely on employer documents submitted on October 5, at least fourteen days past the due date, the Ministry of Labor rejected the union's registration petition.[177]The Ministry of Labor concluded that one of the forty union members had resigned on August 17, prior to union formation, and that five others had signed notarized documents indicating that they never attended a union founding assembly.[178]The implication of excluding these six workers was clear-union membership dropped to thirty-four workers, one below the mandatory minimum for the establishment of a union.On October 18, the provisional vice-president of SITRACON requested copies of the five notarized worker statements on which the rejection of the union's registration petition was primarily based.[179]The Labor Directorate reportedly refused, responding that they were confidential and could not be disclosed.[180]

ConfeccionesNinos workers claim that the Ministry of Labor arbitrarily accepted the employer's submissions and that a proper investigation would have shown those submissions to be without merit.The provisional secretary of SITRACON explained to Human Rights Watch that during the afternoon of the same day on which SITRACON submitted its registration petition, the company owner, General Zepeda, began pressuring workers to resign from the union.She recounted that most of the forty workers listed on the union registration petition were summoned to Zepeda's office, one by one, over roughly the next ten days, where Zepeda accused them of being ungrateful and betraying him.He threatened to fire them without severance pay unless they signed documents stating that they did not attend the union's founding assembly.[181]Under duress, the provisional secretary explained, five workers signed the statements.Moreover, according to union leaders, the worker who reportedly stopped working on August 17 was actually employed but on maternity leave during that time.[182]

The provisional SITRACON secretary was among those called to Zepeda's office. She recounted the experience:

[Zepeda said] that he had been good to me.He knew me well, and [he said] that he didn't think I was like this. . . .[He asked], "Don't you realize that because of you the company will close-because of the union?"[He said that] not only would I be without a job but over three hundred coworkers would be without jobs and would not be able to find work. . . .He even said to think of my daughter. . . .At the end, he got angry with me.[183]

She added that shortly thereafter, her mother received an anonymous threatening telephone call and the provisional union president received two calls, ordering each of them to renounce their union membership.[184]

Not only did the Ministry of Labor accept the company's version of events without further investigation, but it also ordered that the case be transferred to the Section of Professional Investigation of the Supreme Court to investigate the notary who notarized the union's founding documents. [185] According to union leaders, notaries are reluctant to provide services for unions and charge unions more money for their services because they fear negative repercussions, such as the aforementioned investigation."When we want to certify things, it's hard.It's hard to find a [notary] that will get involved in union matters," one union leader told Human Rights Watch. [186]

The company temporarily suspended all production on September 26, 2001, shortly after the union submitted its union registration petition.[187]Zepeda justified the suspension by citing lack of raw materials due to suspension of subcontracted orders from IndustriasLenor, S.A. de C.V. (Lenor Industries).[188]Workers, however, complained to the Human Rights Ombudsman's Office that the factory had been closed in response to union organizing.[189]

On October 23, 2001, twenty days after the workers reportedly requested a workplace inspection to investigate the legality of the suspension, an inspector visited ConfeccionesNinos. [190] The labor inspection report stated that the factory had suspended operations and did not have raw materials, but it never determined whether the employer was at fault for the lack of materials and, therefore, never ruled on the legality of the suspension. [191] Instead, the report said that the Labor Inspectorate would await a judicial resolution of the matter. [192]

ConfeccionesNinos remained closed for roughly three months, during which time workers checked frequently to ask when the factory would reopen.Reportedly, an employer representative and/or a security guard would meet them at the gates and explain that Zepeda had said that the factory would reopen in January and that the workers would be recalled then.[193]The plant opened again in mid-November, however, and reportedly remained open for less than three weeks, employing roughly forty workers, most of whom were new employees and none of whom were trade unionists.The provisional secretary of SITRACON commented, "He said he would recall us. . . .It was a lie."[194]Instead, according to a union organizer, "With the [black]list in hand on the day the company opened, they were saying [which of the suspended employees] could work and who could not. . . .Some [trade unionists] presented themselves to be reinstated, but they were not allowed to enter and were told that because they were trade unionists, they could not work."[195]The plant reopened again in March 2002, with roughly sixty workers-mostly new employees-but closed again after roughly fifteen days.[196]At this writing, the factory remains closed.

By December 2001, roughly three months after the suspensions commenced, a majority of workers had reportedly tendered their resignations in exchange for severance pay because they were reportedly told that if they did not accept it at that time, they would lose it.The pay was individually negotiated and reportedly ranged from 30 to 40 percent of the full amount due for dismissal without cause.According to a union organizer, as well as SITRACON's provisional secretary, however, the trade unionists were offered nothing because they had "betrayed the General."[197]Many union members, along with a few non-union coworkers, subsequently filed claims before the labor courts to recover their severance pay.In most cases, these workers accepted the company's offer of 50 percent of full severance, made during the judicial conciliation process, in exchange for their resignations.[198]

Five workers, however, rejected the settlement offer and went forward with their cases before the labor courts, despite threats from Zepeda that they would receive nothing if they refused his offer.[199]In the fall of 2002, the workers reportedly won their cases.Zepeda has allegedly argued, however, that he has no money with which to pay the judgments, and the judge, therefore, has reportedly impounded twelve machines from the factory to be sold in order to make the payments owed.[200]As of this writing, the machines have not been sold.SITRACON's provisional secretary-one of the five workers who rejected the company's offer during judicial conciliation-explained that, according to the workers' attorney, no buyers have been found for the machines.She concluded, "They haven't given us the machines or the severance."[201]Thus, the judgment reportedly has yet to be enforced.

Human Rights Watch mailed inquiries regarding the above-described labor conflict to the personal residence of Zepeda in San Salvador on June 30.At this writing, we have received no response.

El Salvador International Airport

Unionized workers at El Salvador International Airport allege that in late September 2001, they were targeted for illegal suspensions and, since then, have faced pressure from their employer, the Executive Autonomous Port Commission (CEPA), to resign from the union.Far from protecting the workers, the Labor Ministry neglected to rule on critical matters raised in an inspection petition from workers, misapplied and misinterpreted the law governing labor suspensions, and failed to follow recommendations from the Human Rights Ombudsman's Office and the ILO.

At approximately 11:00 p.m. on the night of September 23, 2001, military personnel and assault and anti-riot units of the National Civil Police ordered civilian public sector airport workers at the El Salvador International Airport to abandon their duties and leave the airport premises.[202]The following day, "elements of the national security [forces]" were called in to replace the civilian airport cargo and security personnel.According to the president of CEPA, El Salvador's port authority, "What occurred [from September 23 through September 26] was a work interruption," and on September 27, 2001, worker suspensions officially took effect.[203]As discussed below, however, the initial three-day displacement of civilian workers failed to meet the legal criteria for a work interruption.The continued exclusion of these workers from their jobs also failed to satisfy the requirements for a legal labor suspension. Work was never interrupted nor suspended because the civilian employees were immediately replaced by security personnel to perform their duties.

By September 27, 2001, a number of civilian workers had been allowed to return to their posts.Many others, however, were not allowed back.CEPA figures indicate that, at that time, 157 out of roughly 198 civilian airport cargo and security workers were "affected by the substitution"-suspended and replaced indefinitely by military and police units.[204]Leaders of SITEAIES, the airport workers' union, claim that union members were disproportionately affected by the suspensions, reflecting anti-union bias.They say that all 157 suspended civilian workers were union members,[205] including six union officials (four leaders and two members of the union's Commission of Honor and Justice) who enjoyed protected status and could not legally be suspended without prior judicial approval.[206]CEPA reportedly failed to obtain such approval and also failed to continue to pay the protected employees their salaries and benefits while suspended, as legally required.[207]

CEPA's own figures show that 120 of the 157 suspended civilian workers were union members.[208]Moreover, the figures indicate that 92 percent of unionized cargo and security workers were suspended, far more than the 54 percent of suspended non-unionized workers.All sixty-two unionized members among the 120 security workers were suspended.Of the twenty-four security workers who were allowed to remain after the suspensions were imposed, not one was a member of the union.[209]

Commenting on the disproportionate suspension of union members in this case, the ILO Committee on Freedom of Association requested in June 2002 that El Salvador:

[t]ake the necessary measures urgently to ensure that an investigation is carried out to determine the reasons why such a high proportion of trade unionists and workers' representatives were dismissed [sic] and, if it transpires that any of these dismissals [sic] were due to trade union membership or legitimate union activities, that it take the necessary measures to ensure the reinstatement of those workers in their jobs, without loss of pay.[210]

To Human Rights Watch's knowledge, to date, no such investigation has been initiated.

CEPA asserts that both the three-day work interruption and the subsequent suspensions were in accordance with Salvadoran law.[211]Like a suspension, a work interruption may legally occur in cases of an "accident or force majeure, like lack of raw materials," whose consequences are not attributable to the employer.[212]While a suspension can last for up to nine months, a work interruption occurs "for a period not to exceed three days."[213]Both, however, require the total or partial failure of an employer to provide normal services.

In this case, CEPA claims that both the work interruption and suspensions were the result of force majeure because the government had ordered them "in the face of the need to strengthen the security of the nation" in the wake of September 11, 2001, and CEPA had no choice, "being decisions related to national security," but to obey.[214]Apparently unpersuaded by these arguments, the ILO Committee on Freedom of Association requested in June 2002 that El Salvador "carry out an investigation to determine the reasons" for the suspensions and "the extent to which it interfered with trade union activities."[215]El Salvador continues to claim that "trade union rights were not obstructed."[216]

SITEAIES leaders also assert that beginning on September 24, 2001, and in the days following, CEPA management pressured civilian workers still working at the airport, including maintenance staff, fire department personnel, radar technicians, administrative personnel, and air traffic controllers, to resign from the union or be fired.[217]Workers were reportedly summoned individually, and at times in small groups, to meetings with the operations and human resources departments, where union resignation letters, prepared in advance by CEPA, were placed before them.[218]They were reportedly told to sign the letters or face termination.After signing the letters, workers were also granted paid work time and, in some cases, transportation to travel to the Ministry of Labor to present their union resignations.[219]Approximately fifty-five workers reportedly resigned from the union under such pressure.[220]CEPA has repeatedly denied these allegations, however, and said that "in no moment has it been demanded that any worker of this autonomous institution resign from the union under the threat of dismissal."[221]

On September 24, 2001, SITEAIES presented a complaint against CEPA before a civil court in Zacatecoluca, El Salvador, alleging that CEPA had instituted an illegal lockout,[222] defined as "the total suspension of work ordered by an employer or a union of employers."[223]For reasons that remain unclear, the complaint failed to challenge the legality of the work interruption declared on September 23.After conducting a worksite inspection, the judge concluded that "CEPA has not ceased to provide the services assigned to it," and, therefore, a lockout did not exist.In doing so, the judge also observed that work was continuing as before, only with different workers, finding that the "special services that the suspended workers performed, . . . of security in the company installations and cargo management," had "not been suspended."[224]

On September 24, SITEAIES also submitted a request for an inspection to the Labor Inspectorate but believes that it never received a proper hearing.The request again failed to challenge the legality of the work interruption and, instead, included allegations that CEPA had declared an illegal lockout and that the "head of the Department of Operations has demanded that different workers . . . resign from the union, under the threat of being fired if they do not."[225]

The inspection was conducted on September 26, 2001, and included interviews with workers and employer representatives.The inspector failed to rule on the allegation that workers were being intimidated to withdraw from the union, though she included in her report employer denials that such threats were occurring.The inspector also failed to address the issue of an alleged illegal lockout, instead exercising her prerogative to rule on the more salient question of whether the declared work interruption was legal.In doing so, the inspector ruled in favor of CEPA, stating that the original three-day work interruption was legal and due to force majeure.[226]Nonetheless, as had been observed in dicta by the civil court judge in Zacatecoluca, work at the airport had never been interrupted or suspended and normal services had been and were being provided.

On December 20, 2001, the Human Rights Ombudsman's Office issued a resolution addressing violations of civilian airport workers' rights at the El Salvador International Airport.The ombudsman's report found the application of the legal concepts of work interruption and suspension to be "inappropriate" in this case and noted that CEPA "has made illegal and arbitrary use of them, to the detriment of a specific group of workers."The report explained that force majeure is an event or action of a third party that produces "an organizational, technical or financial situation that negatively impacts a company and as a result impedes its viability and normal functioning."[227]For force majeure to be invoked properly as cause for a suspension or work interruption, there should be "the absolute impossibility of completing the obligation and not just a mere difficulty."[228]The report concluded that the force majeure provision did not apply in this case because work was "never interrupted, not even partially" at the airport.

The Human Rights Ombudsman's Office also found that the Labor Inspectorate acted illegally when it accepted CEPA's invocation of force majeure as justification for the work interruption and suspension because it did not uphold its legal obligation to ensure employer compliance with labor laws.The ombudsman's report criticized the Labor Inspectorate for uncritically "accepting . . . the reasons given by the employer with regards to the work interruption," finding that its action "seriously calls into question the responsible and objective behavior of that Directorate with respect to assuming the 'monitoring of compliance with labor norms.'"[229]

Shortly after the suspensions, "CEPA . . . agreed . . . that [each] worker affected by the suspension of his contract that made use of the right to resign voluntarily, would receive compensation equal to one hundred percent (100%) of his monthly salary for each year of service, in addition to the proportional labor benefits."[230]Roughly ninety-three of the 157 suspended workers reportedly accepted the offer, tendering both their resignations and waivers of all future legal claims against CEPA.[231]The above account raises concerns that CEPA's action may best be explained as the invocation of force majeure as a pretext for declaring suspensions that compel union members to resign.That tactic would follow a pattern, discussed above in the Lido case and below in the CEL case, in which employers exert pressure on suspended or fired trade unionists to tender resignations and liability waivers. This reduces union membership while allowing employers to evade legal prohibitions on anti-union firings and dismissals to destroy a union.

The Human Rights Ombudsman's Office found that, when the various actions detailed above are considered together, "the intention of affecting the existence and activities of the union can be presumed. . . .CEPA, therefore, has attacked union rights."[232]The ombudsman concluded that CEPA had violated workers' right to organize by illegally obstructing union activity, including through illegal worker suspensions, and ordered the immediate reinstatement of the suspended workers with back pay.[233]CEPA countered that it "has not applied any discriminatory treatment against workers affiliated with the union."[234]

The Human Rights Ombudsman's Office's recommendations were not followed.[235]On February 26, 2002, through a mediation process facilitated by the Labor Directorate, CEPA and SITEAIES reached an agreement.[236]In previous mediation sessions, the union had unsuccessfully pushed for reinstatement of the suspended workers.[237]By February 2002, however, the workers had been suspended for over four months.According to the SITEAIES general secretary, "The people couldn't stand it any longer.[They said,] 'Look for a solution, whatever it is, or we'll claim our [severance] checks.'"[238]The agreement addressed the situations of the sixty-four suspended workers who rejected CEPA's prior offer of severance payments in exchange for resignations and liability waivers.It reportedly provided for approximately 150 percent of workers' severance pay and established that the sixty-four workers would form a cooperative or company that would be contracted by the El Salvador International Airport to provide cargo services.[239]

In April 2002, the workers' cooperative, in which each worker has part ownership and enjoys an equal share of profits, was contracted by the airport.[240]The sixty-four cooperative members are no longer eligible to be SITEAIES affiliates, as they work for the cooperative and are no longer direct airport employees.In addition, according to a September 13, 2002, communication to the ILO Committee on Freedom of Association, filed on behalf of SITEAIES members, "[M]ore workers have renounced their trade union membership under pressure from management following the 26 February 2002 agreement."[241]As of April 2003, SITEAIES had seventy-two affiliates, over 75 percent fewer than the roughly 296 registered with the Ministry of Labor before September 23, 2001.[242]

At the end of January 2003, prior to our fact-finding mission to El Salvador, Human Rights Watch called CEPA to request an interview with RuyCsar Miranda, CEPA's president, while in El Salvador.We were told that he would be out of the country at the relevant time, so we asked to meet with any other employer representative who could discuss the labor conflict at the El Salvador International Airport.We were transferred to the head of human resources, who told us, "I am not authorized to have a meeting with you. . . .We are not authorized to talk about this.The case is over.Now there are no problems [at the airport]."[243]Human Rights Watch was unable to meet with CEPA.On June 30 and July 1, 2003, however, Human Rights Watch mailed and faxed, respectively, inquiries regarding the above-described labor conflict to Miranda.At this writing, we have received no response.

Anthony Fashion Corporation, S.A. de C.V.

Anthony Fashions, a textile factory in the San Bartolo Free Trade Zone that employed more than seven hundred workers, closed operations on December 23, 2002, and, as of this writing, has yet to reopen.[244]Since that time, workers have attempted unsuccessfully, through labor courts and the Labor Ministry, to gain redress for alleged violations of Salvadoran law governing social security and pension payments, year-end bonuses, worker suspensions, wage payments, and severance pay.[245]The Labor Ministry, however, has declined to rule on matters within its jurisdiction, failed to report to social security authorities evidence of social security law violations, and refused to provide workers with critical inspection results.Meanwhile, labor court proceedings against the company have stalled because employer representatives have fled and are nowhere to be found.

Anthony Fashions workers assert that the company deducted social security and pension payments from their salaries without transferring the funds to the government-a claim later verified through a labor inspection.[246]Because Anthony Fashions' payments to the Salvadoran Social Security Institute were delinquent, workers and their children were unable to access free public healthcare.[247]Without free treatment at the social security hospitals and clinics, workers, including pregnant women seeking prenatal care, and their children were forced to go to private clinics and hospitals, if they could afford to, at their own expense.[248]Workers also claim that the company failed to pay required maternity benefits for roughly thirty women.[249]They say that when they complained, Jorge Paz, an owner and legal representative of the company, verbally abused them-using "bad words," calling them "worthless," telling them to "go to hell," and explaining, in the words of one worker, that "in my house, no one is going to fuck with me."[250]Carla Cabrera, an Anthony Fashions worker, explained that when workers threatened to denounce Jorge Paz to the Ministry of Labor, "he [Paz] said, 'Denounce me.Go!I've already bought off the Ministry of Labor, and they won't act against me.'"[251]

On November 15, 2002, Anthony Fashions reportedly commenced phased-in worker suspensions, completing the suspension of all production line workers through a series of suspensions on December 7, 10, and 20.[252]On December 23, the company suspended all operations.[253]On December 26, Anthony Fashions workers sent a written request to the leadership of the Union of Textile Industry Workers (STIT) asking that a union leader be designated to "represent us in the legal procedures of special labor inspections before the Labor Inspectorate of the Ministry of Labor and Social Welfare, for the serious violation of the right to Social Security, year-end bonuses, and for the illegal suspension of our individual labor contracts."[254]

On January 6, 2003, suspended and fired workers gathered outside the factory in hopes of receiving their overdue mandatory annual bonuses, since Jorge Paz had reportedly told them that, on that day, he would pay them.[255]No bonuses were paid.[256]One worker explained, however, that "a security guard told us that they were going to take out the machinery,"[257] thereby removing assets that could eventually be sold to pay workers the money owed.The workers reportedly protested and blocked the doors of the factory to prevent Jorge Paz and other management representatives from leaving.[258]Learning of the protest and threat to remove the machinery, a STIT representative reportedly called the Labor Ministry on behalf of the workers to request a labor inspection to inventory the machinery and prevent its removal,[259] which was reportedly granted.[260]

On January 7, 2003, through the general secretary of STIT, workers also requested that the Labor Inspectorate conduct an inspection to verify the illegality of their suspensions; the violation of their right, under Salvadoran law, to social security and pension payments; and employer failure to pay mandatory annual bonuses due in December 2002.[261]That same day, Ada Cecilia LazoGutirrez, a supervisor of labor inspectors for the Department of Industry and Business Inspection, and a labor inspector visited the worksite to "verify the suspension of workers or the closure of the company" and "payments to the Salvadoran Social Security Institute and AFP [Administrator of Pension Funds]."[262]

According to the inspection report, Anthony Fashions' head of human resources and Jorge Paz told the inspectors that the suspensions were implemented because Leslie Fay Company, Inc., had cancelled a production contract with Anthony Fashions and that the company would resume operations once a replacement contract was signed.[263]The inspectors failed to rule, however, on whether this justification was sufficient to make the suspensions legal.According to the workers' lawyer, when he pressed Ada Cecilia LazoGutirrez for a ruling on the issue, she told him that such a declaration was not within her jurisdiction and that she, therefore, could not legally rule on the matter.[264]Under different circumstances, however, Lazo demonstrated that, in fact, she correctly understands the law.When Human Rights Watch asked Lazo, generally, whether inspectors could rule on the legality of a suspension, she answered affirmatively, saying, "We can go to verify the facts. . . .We can verify that it is illegal."[265]

The January 7, 2003, inspection also made preliminary observations regarding social security and pension payments, without issuing a final ruling. Another inspection conducted on the issue on January 9, 2003, found that the company owed social security and pension payments and that the most recent payments had been made more than a year previously, in November 2001.The report calculated that the company owed approximately U.S. $120,000 to the AFP and U.S. $260,000 to the ISSS.[266]The inspectors thus confirmed that Anthony Fashions had violated laws governing social security and pension payments for at least thirteen months.

The government had been on notice of the company's delinquency in social security and pension payments.Roughly one year earlier, on January 22, 2002, a supervisor of labor inspectors for the Department of Industry and Business Inspection had identified Anthony Fashions as a company that, at the time, owed "three months of ISSS and AFP payments."The memorandum stated, "With respect to the companies that are behind in payments of Social Security and AFP quotas, it is necessary to communicate said situation to the relevant Institutions."[267]The supervisor who prepared the memorandum explained to Human Rights Watch that, despite his findings and recommendation, his superiors "did nothing with the report."[268]

Anthony Fashions workers were provided a copy of the January 9 inspection report and shared it with journalists.Apparently, this upset Jorge Paz, who wrote a letter to the Minister of Labor on January 10, 2003, stating that "unscrupulous people" who were "supposed trade unionists" were "using the media to generate negative propaganda against me."He then requested that the minister of labor "order your assistants to use appropriate discretion with respect to information that this company gives to this ministry" because if it fell into "evil hands," it could complicate the situation and adversely affect Anthony Fashions financially.[269]

On January 10, the Labor Ministry conducted a third inspection, reportedly in response to the workers' January 7 inspection request to investigate employer failure to pay mandatory annual year-end bonuses.[270]Neither the union representative who submitted the inspection request nor the workers' lawyer was informed that the inspection would take place, even though both had specifically requested such notification.[271]Moreover, no workers were interviewed.[272]Unlike the prior inspection, the workers did not receive a copy of the report and have not been informed of the inspection's findings.[273]

On January 13, 2003, Anthony Fashions workers filed a request with the local prosecutor to initiate an investigation and criminal proceedings against Anthony Fashions' legal representatives-Anthony Iurato and Jorge Paz.The request alleged that, since December 2001, the two men had illegally retained the social security and pension payments of seven hundred workers.[274]A second complaint added the allegation of illegal failure to turn over property belonging to workers-the mandatory year-end bonuses to which they became entitled on December 12,eleven days prior to factory closure.[275]The former crime is punished with a fine, the latter with a prison term of between two and four years.[276]The prosecutor declined to pursue the more serious charges, however, reportedly because the workers could not provide a copy of the January 10 inspectors' reportindicating whether year-end bonuses were, in fact, owed to workers and, if so, in what amount.Absent these more serious charges, the prosecutor also reportedly argued that he could not pursue a "migration restriction" against the legal representatives of Anthony Fashions to bar them from leaving the country.[277]As discussed below, a migration restriction would have greatly increased the chance that workers' labor court cases, currently dismissed without prejudice for inability to locate the defendants, could proceed.At this writing, the criminal case is still pending on the lesser charge.[278]

On January 17, 2003, an estimated 150 Anthony Fashions workers went to the Ministry of Labor to request copies of the January 10, 2003, inspection results.They occupied the first floor of the building, while a few of the workers went to the Inspectorate with their lawyer and unsuccessfully asked for the report.[279]Riot police reportedly surrounded the building.Later in the afternoon, a delegate from the Human Rights Ombudsman's Office and Antonio Aguilar Martnez, the associate ombudsman for labor rights, arrived.Aguilar explained to Human Rights Watch, "The police were already there. . . .The ministry had told the police that there were hostages and that [workers] had broken doors, but that was not the case."Aguilar recounted that he met with the vice-minister of labor, Luis Fernando Avelar, to encourage him to meet with workers.After asserting that this was "a political question" and that the workers just "wanted to give the image that maquilas violate rights, when this was an isolated case," Avelar reportedly agreed to speak with a group of five workers.[280]

According to Anthony Fashions workers, the vice-minister told the workers that he would not give them the report, that they "had no right to the inspection results," and that such documents were never provided.[281]When they showed him inspection reports on Anthony Fashions and other facilities, he reportedly said he would have to investigate why workers were given those reports, suggesting, according to Aguilar, that the official(s) who did so would face penalties.Aguilar explained that the Human Rights Ombudsman's Office felt that this was an inappropriate response and that the vice-minister should have given workers the requested documents.[282]

Over 320 worker complaints were reportedly filed in 2003 against Anthony Fashions in the labor courts, seeking severance pay, year-end bonuses, unpaid vacations, and, in some cases, salaries due.[283]Almost all have now been discontinuedwithout prejudice, due to the inability to locate the defendants.[284]According to the national coordinator of the Unit for the Defense of Labor Rights for National Legal Aid, "The workers can't find them, much less [can we].This is the problem with Anthony Fashions. . . .If we can't find them, . . . the process can't go forward."[285]To date, workers have not received any of the money they are reportedly owed.[286]

Not only have workers not received any compensation from Anthony Fashions, but they claim that they are unable to find jobs at other factories, as they are reportedly blacklisted.[287]Several workers told Human Rights Watch that Anthony Fashions workers had also been fired from other maquilas, once management learned of their previous employer.One worker asserted, "They don't hire us in other maquilas for fighting for our rights."[288]

Human Rights Watch was unable to find a legal representative of Anthony Fashions in El Salvador with whom to discuss alleged workers' human rights abuses at the company.After returning from El Salvador, Human Rights Watch unsuccessfully attempted to locate Anthony Iurato at Metrix Computer Cutting, where he was president, in Clifton, New Jersey.After contacting numerous Clifton, New Jersey, municipal offices and New Jersey state agencies, however, Human Rights Watch learned that Metrix Computer Cutting declared Chapter 11 bankruptcy on December 6, 2001, and on August 16, 2002, was granted Chapter 7 bankruptcy.[289]The Chapter 11 bankruptcy papers contain Iurato's home address, to which Human Rights Watch mailed a certified letter on June 30, 2003, with questions regarding the above-described events at Anthony Fashions.Iurato signed for the letter on July 17, 2003.At this writing, we have received no response.

Ro Lempa Hydroelectric Executive Commission

The RoLempa Hydroelectric Executive Commission is a state-owned electric utility company that reportedly employs roughly 453 workers.[290]Leaders of the Union of Electric Sector Workers (STSEL), which has one of its four divisions at CEL, allege that since September 2001, the company has engaged in a systematic anti-union campaign against its 223 members, reducing their numbers to forty-two as of July 2003.[291]The campaign reportedly began with CEL's successful effort to decertify the election of an STSEL union official, made possible by a biased Labor Ministry inspection, the report from which was temporarily withheld from the affected union official; continued with company support for a parallel union, reportedly registered with the Labor Ministry despite violating a key requirement for union formation; and included, throughout, the illegal dismissal and forced resignation of STSEL members and leaders.CEL asserts, however, that the company "respects the right to freedom of association, contemplated in the Constitution and the Labor Code, proof of which, is that its workers can freely choose to affiliate with the union of their choice-STSEL or STECEL [the parallel union]."[292]

Mario Roberto Carranza Hernndez

Mario Roberto CarranzaHernndez began working for CEL on August 1, 1988.[293]On November 24, 2000, he was elected secretary of finance for the CEL sectional ofSTSEL.On August 30, 2001, Orlando Ernesto Lemus Herrera, legal representative of CEL, petitioned the Labor Directorate's National Department of Social Organizations to nullify Carranza's election on grounds that he occupied a position of confidence and, therefore, could not legally serve as union leader.[294]In a letter to Human Rights Watch, CEL said that since the Labor Code prohibits employees of confidence from holding union leadership posts, in submitting the petition, it "only requested that a legal principle be enforced" with respect to Carranza.[295]

Orlando NoZelada, a former supervisor of labor inspectors for the Department of Industry and Business Inspection, visited CEL on September 3, 2001, in response to Herrera's request.[296]Zelada, who voluntarily resigned from the Labor Inspectorate in 2002, told Human Rights Watch that, prior to the visit, RolandoBorjasMungua, director general of the Labor Inspectorate, instructed him to find in favor of CEL and hold that Carranza was employed in a position of confidence.Zelada commented, "He should not have asked for a determination beforehand."Zelada further explained that the inspection itself was not legal-outside the Inspectorate's jurisdiction-and should have been done, instead, by the Department of Social Organizations.Zelada noted, "It was done to favor this institution [CEL] and to stay on the good side of the lawyer [Herrera].They [Borjas and Herrera] are friends. . . .It is always like that."[297]

Zelada's September 3, 2001, inspection report stated that Carranza was a "Head of Area," though his job title did not reflect this, and that as long as he performed the duties of "Head of Area," he would be an "employer representative," which prevented him from being a union leader, according to article 225(5) of the Labor Code.[298]Based on this report, the National Department of Social Organizations nullified Carranza's election on September 20, 2001.[299]

On September 21, 2001, STSEL requested a copy of the inspector's findings.[300]The Labor Inspectorate denied the request, however, asserting that Carranza was not allowed to view the inspection report because, according to the Labor Code, ministry documents are not valid in labor court proceedings or other labor conflicts and, according to the Law of the Organization and Functions of the Labor and Social Welfare Sector, inspectors must maintain "strict confidentiality" and are prohibited from "revealing any information about the affairs subject of an inspection."[301]Nevertheless, the Labor Inspectorate provided CEL a copy on September 13, 2001, the date on which Herrera renewed the company's request to the Ministry of Labor to decertify Carranza's election to union leadership.[302]After obtaining a favorable ruling regarding Carranza's union membership, CEL fired him on September 24, 2001.[303]

On October 8, 2001, Carranza filed a complaint against the Ministry of Labor with the Division of Disputed Administrative Matters of the Supreme Court.The complaint challenged the cancellation of Carranza's election to union leadership and the denial of a copy of the inspection results on which the cancellation was based.The complaint argued that the confidentiality provisions cited by the Labor Inspectorate are not applicable to a party to the process, who has "the right to see the respective document in order to exercise his defense."In addition, the complaint noted that, in this case, one party-Carranza-was not allowed to view the report, while the other-CEL's lawyer-received a copy.Carranza asked, "[I]f that argument were valid, how is it that the lawyer for CEL was given a certified copy of the inspection report?"[304]

The Labor Inspectorate responded to Carranza's complaint by asserting to the Supreme Court on November 12, 2001, that his allegations were false.[305]In another document submitted to the Supreme Court on December 21, 2001, the Labor Inspectorate said the inspection report was provided to STSEL on October 23, 2001-close to six weeks after CEL received a copy-and asked for the case to be dismissed.[306]The Supreme Court refused the request, however, noting a discrepancy between the document number referenced by the Labor Inspectorate and the number of the inspection report requested by Carranza.[307]At this writing, the Supreme Court has not issued a final ruling on the case.

On December 20, 2001, Carranza also filed a complaint with a civil court in San Salvador challenging his firing as illegal for failure to include an opportunity to be heard prior to termination, as required by the Law Regulating the Hearing Guarantee for Public Employees not Included as Civil Servants.[308]In the complaint, healleged that he was summarily fired on September 24 and asked the court to declare the firing "null and void" because it failed to follow relevant legal procedures.[309]Though he challenged his dismissal in court, Carranza, like many other workers facing loss of income, subsequently signed a notarized resignation form on January 22, 2002, that stated:

By this means I turn in my irrevocable resignation, from the position . . . that I have performed for and at the orders of . . . CEL . . . from August 1, 1988, to September 24, 2002, the date on which I voluntarily cease to provide my services to said company . . . , and . . . I declare [CEL] free and clear of all responsibility that could derive from the individual labor relationship that linked me to [CEL] until the mentioned day.[310]

With the resignation and liability waiver, Carranza agreed to withdraw all legal claims against CEL, terminating his court and administrative proceedings underway against the company.In exchange, CEL reportedly paid Carranza U.S. $9,231.36 in severance pay and U.S. $12,467.61 for his protected union leader status.[311]This was the full amount that would have been due to Carranza if he had not resigned and, instead, had been fired without just cause as a union leader.CEL told Human Rights Watch that the amount was "paid, out of mere generosity-despite his resignation."[312]Carranza thus became yet another Salvadoran worker faced with the draconian choice between greater financial stability and the right to freedom of association.Like many, due to economic necessity, he chose the former.

Human Rights Watch asked CEL to explain why, if Carranza resigned on September 24, 2001, he tendered his resignation almost four months later and, in the interim period, challenged the legality of his reported dismissal.The company did not fully answer the question, stating only that "Mario Carranza ceased to provide services to the Commission on September 24, 2001, and on January 22, 2002, presented his irrevocable resignation."[313]

Other Dismissals of STSEL Union Members and Leaders

Between September 24, 2001, the date of Carranza's firing, and October 18, 2002, CEL reportedly fired about thirty other STSEL members.At least six of the fired workers were union leaders who enjoyed full protected status, while three workers were STSEL sectional delegates, who reportedly enjoy protected status only for the duration of their one-year terms.[314]

In a letter to CEL, Human Rights Watch requested the company to confirm the number of workers fired between September 2001 and the present and indicate how many of those were STSEL affiliates, leaders, and sectional delegates.The company failed to respond to the question, however, instead asserting, "CEL tries as much as possible not to fire its workers [and] terminates their contracts for just cause, for serious failings that they commit in the realization of their work."[315]CEL added, however, that it pays full severance due fired workers, as well as all additional payments due fired union leaders, "all . . . in compliance with the Law and the Collective Contract."[316]

CEL has also categorically denied that any of the contract terminations since September 2001 were anti-union dismissals, asserting, "CEL does not have any policy of firing workers for the mere fact of belonging to a union."[317]In a letter to the Labor and Social Welfare Commission of the Legislative Assembly regarding sixteen of eighteen workers reportedly fired between September 2001 and April 2002, CEL said that seven workers were fired for cause, including for "a lack of confidence" in the workers, "deficient work,""bad interpersonal relations," and "disrespect for management."CEL never commented on whether the firings were legal, however, and in all cases, offered workers the severance pay due in cases of unjust dismissal.CEL explained the payments to Human Rights Watch, saying, "Out of mere generosity and to maintain good harmony with its workers, CEL, independently of the cause, . . . pays the full debt it may have with the worker who has ceased being employed."[318]CEL said that the other nine workers resigned and provided nine notarized forms as proof.[319]

However, one of the nine forms is not a resignation but, instead, details the termination of the worker's labor contract and, like all nine forms, absolves CEL of all further legal obligations.[320]Another form is that of Carranza, who contested his firing as illegal.[321]Six, including Carranza's, were signed on the same day, January 22, 2002-between two-and-a-half and four months after the reported resignations occurred.[322]Only two were dated the same day of the supposed resignations.[323]

In response to a Human Rights Watch request to explain the disparities between the dates of workers' last days as CEL employees and their official resignations, CEL replied only that the workers, including Carranza, had "ceased to work at the Commission-which constitutes abandonment . . . and, later, presented their resignations to the company."[324]CEL's response does not address why union members and leaders, some of them long-time employees, allegedly suddenly stopped working and then waited months to resign.Nor did the company explain why, if the workers abandoned their duties for months, CEL did not fire them for cause but, instead, waited for them to tender delayed resignations and liability waivers and then, "out of mere generosity," paid them the amounts due in cases of illegal dismissal.

Like in the Lido case, when the fired CEL workers tendered their resignations and waived all future claims against the company, CEL reduced union membership in its workplace while circumventing Labor Code union protections and evading legal liability.On January 15, 2003, CEL reportedly fired five more workers, all STSEL union leaders who enjoyed protected status, again without seeking prior judicial approval.[325]

Though all union leaders and sectional delegates were reportedly fired without prior judicial authorization,[326] CEL reportedly failed to continue paying them their monthly salaries and benefits until their protected periods expired, as required by law in such circumstances.Instead, only those seven leaders and delegates who accepted CEL's offer to resign and waived all future claims against CEL received their legally stipulated compensation.[327]CEL claims, however, that the company "always has . . . paid in full the labor debt to each and every one of the workers whose contracts has been terminated," even when fired for just cause.[328]

The Human Rights Ombudsman's Office noted that it has repeatedly asked CEL for an explanation of the legal reasons for firing the workers and the legal process the company followed but has not received any reply.[329]Antonio Aguilar Martnez, associate ombudsman for labor rights, told Human Rights Watch that he believes that "CEL's intention was to weaken the union."[330]Aguilar also described for Human Rights Watch the ombudsman office's attempts to meet with CEL, stating:

I went to the company to talk to Sol Bang [president of CEL].We saw . . .intransigence to talk to the Human Rights Ombudsman's Office. . . .At first, they didn't let us in, not even to the first floor.We spent half an hour waiting for him, and we negotiated to enter his office.Before, [a delegate from the Human Rights Ombudsman's Office] had arrived, . . . and he was not even allowed past the first door.[331]

A report of the Human Rights Ombudsman's Office on the issue concluded, "These types of events are lamentable, as they constitute an indication of a serious retreat regarding the obligation of the State to guarantee and respect human rights, particularly in the labor and union sectors."[332]

In its letter to CEL, Human Rights Watch asked whether the company has responded to the Human Rights Ombudsman's Office's repeated requests for an explanation of the alleged firings and for a meeting with the company.CEL answered, "By constitutional mandate, public functionaries do not have more powers than are expressly conferred to them by the Law. . . .It is CEL's option to grant or not interviews with those who ask."[333]

Formation of a Parallel Union

On November 18, 2001, a group of forty-two CEL workers held the founding assembly for a new union-the Union of Workers of the RoLempa Hydroelectric Executive Commission (STECEL)-to operate parallel to STSEL.[334]STECEL leadership has described the new union as an alternative to the "bad direction" of STSEL and its "confrontational methods."[335]STECEL has also publicly supported CEL on the alleged dismissal of thirty-one STSEL members since September 2001, described above, agreeing that those workers "decided to resign, voluntarily" or, if they were terminated, were fired "for lack of ability, but never for being trade unionists."[336]CEL "at no time opposed" the new union's formation.According to STECEL's general secretary,"To the contrary, CEL collaborated with the Ministry of Labor and Social Welfare for the legalization of STECEL."[337]In its letter to Human Rights Watch, however, the company clarified that "CEL does not facilitate, nor has it ever facilitated the formation of a union, as the process of [union] formation is realized before the Minister of Labor and the procedures do not contemplate the intervention of the employer."[338]The Labor Directorate registered STECEL on January 7, 2002.[339]

STSEL has asserted, however, that the new union was illegal because members said to have been instrumental to its formation were still members of STSEL at the time, in violation of the ban on affiliation with more than one union.[340]To support its claim, STSEL presented the Ministry of Labor with records of union dues that CEL discounted for STSEL from November 2001 through January 2002, suggesting that, at the time of STECEL's founding assembly and, in some cases, even after the union was registered, some STECEL members had yet to resign from STSEL.[341]STSEL filed a petition with the Ministry of Labor on June 11, 2002, to revoke STECEL's registration on these grounds.The Ministry of Labor rejected the request.[342]In October 2002, STSEL filed a case against the Ministry of Labor with the Division of Disputed Administrative Matters of the Supreme Court, asserting failure to follow legally mandated procedures for registering STECEL.[343]As of this writing, no ruling has been issued.

Human Rights Watch takes no position on whether more than one union may exist in a workplace.We are concerned, however, that the ease with which STECEL gained legal personality in this case suggests that the Labor Ministry discriminated against the independent workers' organizations in the ConfeccionesNinos case, discussed above, and the SITCOM case, discussed below.The ILO Committee of Experts has noted that, in some cases, governments "place one occupational organization at an advantage or disadvantage in relation to the others" and has stated, "Any unequal treatment of this kind compromises the right of workers or employers to establish and join organization of their choosing and gives rise to difficulties with regard to the Convention [ILO Convention No. 87]."[344]Nonetheless, these facts strongly suggest that the Salvadoran Labor Ministry may erect more obstacles when independent unions, as opposed to employer-sponsored unions, attempt to register.As documented in the ConfeccionesNinos and SITCOM cases, the Labor Ministry rejected petitions from independent unions based on the employers' questionable allegations that legal criteria for union registration had not been met.In contrast, the Labor Ministry quickly granted legal personality to STECEL, an employer-supported union, even after independent union members made claims similar to those presented by the employers in the SITCOM and ConfeccionesNinos cases.

Human Rights Watch contacted CEL no less than fifteen times during our investigation in El Salvador to request an interview with Guillermo A. Sol Bang, CEL's president, or any other management representative who could discuss labor rights at CEL.We also faxed a written request for a meeting.Each time we spoke with Sol Bang's administrative assistant, she explained that he had yet to select someone to meet with us and that she could not arrange an appointment.CEL never confirmed a meeting.On June 30 and July 1, 2003, Human Rights Watch mailed and faxed, respectively, inquiries regarding the above-described abuses of workers' human rights to Sol Bang.CEL responded on July 24, and the company's responses are incorporated above.

Industry Union of Communications Workers

On April 2, 2003, communications workers petitioned the Ministry of Labor to register SITCOM.The union was formed on March 23, 2003, by thirty-five workers from the Telecommunications Company of El Salvador, S.A. de C.V. (CTE); one from the radio station, Radio Clave; one from Telecommunications and Electric Services (SETELCOM); and one from Electrification and Communications, S.A.[345]Shortly thereafter, CTE reportedly pressured the three provisional SITCOM leaders to resign and later fired the two who refused to do so.

After receiving the union registration petition on April 2, the Ministry of Labor notified the four employers and sought to confirm "the [union] founders' status as employees and . . . the principal activity of [each] company," as required by law.[346]On May 22, 2003, based largely on the companies' responses, the ministry rejected SITCOM's petition.The ministry cited three key reasons for its rejection: SITCOM failed to fulfill the requirement that an industry-wide union include workers from at least two companies engaged in the same activity; the union's provisional president was not employed by CTE at the time of union formation; and four members were "employees of confidence" and, therefore, ineligible to unionize alongside other workers.[347]Based on these factors, the ministry found that the workers failed to form an industry-wide organization and also fell short of the mandatory minimum number of workers required to unionize.[348]

On May 30, 2003, SITCOM petitioned the Ministry of Labor to reverse its decision.The petition asserted that all four companies for which SITCOM workers were employed were, and still are, engaged in the same primary activity of communications.It also criticized the ministry because it did not give the union an opportunity to counter the companies' official responses to their registration request.[349]At this writing, the Ministry of Labor has yet to respond to SITCOM's petition.

As in the ConfeccionesNinos case, described above, the Ministry of Labor denied union registration based on the employers' versions of events and did not investigate the matter or seek workers' views.Human Rights Watch believes that a meaningful investigation would have revealed violations of the right to freedom of association and would have cast doubt on employers' claims.In addition, the ministry relied on outdated international guidelines when it concluded that SITCOM failed to fulfill the criteria to qualify as an industry-wide union.

Criteria for an Industry-Wide Union

The Ministry of Labor determined that CTE was a member of the communications industry but that the other three companies employing SITCOM members were engaged in "activities different from 'communications.'"[350]In reaching its conclusion, the ministry relied on the 1989 definition of "communication" set forth in the U.N. International Standard Industrial Classification of All Economic Activities (ISIC):

Communication services rendered to the public whether by post, wire or radio and whether intended to be received audibly or visually.Services for the exchange or recording of messages are also included.Radio and television broadcasting studies and stations are classified in [another] group.[351]

This definition has been revised twice since 1989.In the latest revision, from 2002, the categories of "telecommunication services," "pay telephone services," "radio beacon and radar station operation," "other telecommunication," and "radio and television programme transmission," that were separate and distinct categories in 1989, have been combined into one class under the heading "telecommunications."[352]According to the 2002 criteria:

This class ["telecommunications"] includes: transmission of sound, images, data or other information via cables, broadcasting, relay or satellite; telephone, telegraph and telex communication; transmission (transport) of radio and television programmes; maintenance network; internet access provision; public pay-telephone services.This class excludes . . . production of radio and television programmes, whether or not combined with broadcasting.[353]

Thus, the ministry based its rejection of SITCOM's status as an industry-wide union on an obsolete, narrow definition of the communications sector.Had the ministry applied the 2002 standard, it may have supported union registration.For example, the ministry asserted that "Radio Clave['s], . . . principle activity is broadcasting, an activity classified under the group . . . 'Radio and Television Transmissions,'" rather than "communications"; under the 2002 guidelines, however, "Radio and Television Transmissions" is explicitly cited as a "telecommunications" activity.[354]

In addition, the former general secretary of the El Salvador Association of Telecommunications Workers (ASTTEL), who assisted in the SITCOM organizing drive, explained to Human Rights Watch that both SETELCOM and Electrification and Communications, S.A, are companies formed by former CTE workers and are regularly contracted by CTE to perform projects and services.He argues that these smaller companies, which "perform the same work as CTE" are, like their "mother corporation," also part of the communications industry.[355]The ministry failed to identify the main activities of these two companies in its rejection of SITCOM's registration petition.

Minimum Number of Workers to Form a Union

As mentioned above, the Labor Ministry also found that SITCOM failed to meet the mandatory minimum of thirty-five workers to form a company union at CTE.The ministry noted that CTE had submitted a document "proving the termination of the individual labor contract" of the provisional president of SITCOM on February 1, 2003-roughly seven weeks prior to the union's founding assembly.CTE also asserted that the union included two "group leaders," one "supervisor," and an "assistant"-four "employees of confidence," who were barred from unionizing with CTE workers.[356]Another three workers were disqualified because they worked for the three companies deemed by the ministry not to be within the "communications" category.By excluding these eight workers from the initial thirty-eight founding members of SITCOM, the ministry concluded that SITCOM only had thirty founding members-five workers short of the mandatory minimum required for union registration.[357]

The workers strongly contest the ministry's conclusions.First, the workers claim that the categorization of four workers as "employees of confidence" is without merit.According to the former general secretary of ASTTEL, those four employees perform the same jobs as the other workers, have similar work contracts, and are not managers, and therefore, there is no basis for the company's categorization of them as "employees of confidence."[358]The workers also claim that the provisional president was in fact employed on February 1, 2003, but was forced out and pressured to sign a backdated resignation.The former ASTTEL general secretary told Human Rights Watch, "The provisional president was pressured [when the company withheld] his salary. . . .He gave in and signed a 'voluntary' resignation, [backdated] . . . so it did not fall after the union's formation."Afterward, he received his back pay and severance.[359]

CTE also reportedly froze the March 2003 wages of SITCOM's provisional secretary to force his resignation, but at this writing, he has refused to resign.[360]He has, however, reportedly been barred from the workplace since April 2003, and, therefore, under Salvadoran law, is considered fired.[361]CTE reportedly is refusing to pay his severance legally due or his March 2003 wages until he tenders his resignation.Likewise, in mid-July 2003, CTE reportedly informed SITCOM's provisional vice-president that if he did not resign or retire within a month, he would be fired.Two weeks later, he was dismissed.CTE has also reportedly offered him his full severance pay, as well as assistance in facilitating his retirement, though he is one year shy of fulfilling the legal criteria for retiring, in exchange for his resignation.At this writing, he has also refused to resign.[362]With the latest dismissal of the provisional vice-president, CTE completed its illegal removal from the workplace of SITCOM's three provisionally elected leaders, leaving the workers' organization with no leadership.

Human Rights Watch faxed and mailed inquiries regarding the above-described union organizing drive to CTE on August 1 and August 6, respectively.At this writing, we have received no response.

Tainan El Salvador, S.A. de C.V., and the Salvadoran Social Security Institute

The following examples from the Tainan and Salvadoran Social Security Institute labor conflicts provide further evidence of Ministry of Labor failure to follow legally mandated procedures and of its reluctance to uphold Salvadoran labor law.The case studies below address only a handful of the numerous labor rights violations and Ministry of Labor failings that workers claim occurred in the Tainan case between August 2000 and April 2002 and in the ISSS case between September 2001-as early as 1999 according to some-and the present.[363]Both cases are characterized by years of workers' struggle to exercise their human rights, primarily the right to freedom of association.Human Rights Watch chose to highlight the incidents below because they concisely illustrate issues already underscored in more detailed case studies above.Between June 20 and July 1, we mailed and faxed letters to the former president of Tainan and the current director general of the ISSSseeking their responses to the events described below.At this writing, neither has responded.

Tainan El Salvador, S.A. de C.V.

Tainan was a textile factory that operated in the San Bartolo Free Trade Zone from May 2000 until April 26, 2002, employing roughly 1,200 workers.Tainan workers began to organize in or around August 2000.From approximately February 2001 until factory closure, they were allegedly the victims of anti-union conduct, including the February 2001 dismissal of two union leaders, illegal suspensions, and the withholding of salaries due.Nonetheless, the union reportedly amassed a membership of over 50 percent of the workforce-the requirement under the Labor Code for contract negotiations-and on April 18, 2002, presented a collective bargaining request to the company.Eight days later, the factory closed.[364]From February 2001 until factory closure, the Labor Ministry repeatedly failed to enforce labor law on behalf of Tainan workers, including by refusing to rule on matters within its jurisdiction, failing to enforce inspection orders, and temporarily granting the employer's request to withhold illegally workers' wages.

On November 21, 2002, after months of discussions, representatives of Tainan Enterprises Company, Ltd., Tainan's parent company in Taiwan, and the Union of Textile Industry Workers (STIT) reached an agreement for the factory to reopen, described as a "good faith effort by both parties to find a positive solution to the situation created by the closing of the former Tainan facility."[365]According to The Gap, Inc., one of the U.S.-based companies sourcing from Tainan between February 2001 and April 2002, The Gap also "collaborated with external stakeholders, including NGOs and trade union organizations, to facilitate dialogue between the union and Tainan" and is "pleased that an agreement was reached."[366]

The agreement provides that the labor terms and conditions at the new factory-called Just Garments-are to be governed by a collective agreement "to ensure good, harmonious labor relations" and that a workers' representative and the former Tainan president will be board members.[367]In letters to potential corporate clients sent on April 8, 2003, these two board members described Just Garments as "creating a model of excellence in the industry of cooperation and fair labor relations that will guarantee not only a high quality product, but one that will be made with justice."[368]At this writing, however, the factory remains closed, as details are still being finalized for the company's opening and as clients are still being sought.[369]

While the agreement establishing Just Garments may provide a satisfactory resolution to the labor conflict between former Tainan workers and their ex-employer, it does not absolve the government of responsibility for its repeated failure to protect workers' human rights prior to the factory closure.Instead, it is an example of independent efforts to find a solution to alleged labor rights abuses in the face of the government's serious breach of its obligation to do so.

Failure of Labor Inspections to Follow Proper Procedures

On October 30, 2001, Raquel Salazar Hernndez, secretary of organization and statistics for STIT, submitted an inspection request to the director general of the Labor Inspectorate asking for a ruling on the legality of over ninety worker suspensions, initiated by the factory on October 15, 2001, and lasting until November 5 for workers in the ironing section and November 12 for those in packing.[370]Roughly three months later, on February 4, 2002, a labor inspector declared the suspensions illegal.The inspector noted that while Tainan asserted that the suspensions were due to lack of raw material, "the employer representative could not prove, with any documentation, that the lack of raw material was not the fault of the employer."The inspector ordered Tainan to pay workers their salaries for the time they were suspended by February 11, 2002.[371]

On February 12, 2002, Hernndez requested a follow-up inspection because the company had not paid the workers by the deadline.In the request, Hernndez noted that management representatives had told workers that "they would request that the Ministry of Labor 'reconsider' the findings of the report of February 4, 2002."[372]According to STIT's lawyer, Tainan subsequently submitted additional documentation to demonstrate that the suspensions were due to lack of material, not attributable to the employer.[373]The evidence was reportedly presented to and accepted by the head of the Department of Industry and Business Inspection of the Labor Inspectorate.[374]Salvadoran law, however,allows an employer to submit such additional evidence to the head of the relevant Labor Inspectorate department only during the evidentiary period of sanctions proceedings, initiated against an employer after a follow-up inspection has revealed employer failure to remedy an identified labor law violation.[375]At this writing, the workers have not received the payments ordered-their unpaid wages for the period of their suspensions.

Another round of suspensions occurred on April 5, 2002, affecting workers in the cutting, sewing, and finishing sectors of the company.[376]On April 10, 2002, Hernndez made a written request to the director general of the Labor Inspectorate for an investigation to determine whether these suspensions were legal.As before, the suspensions were allegedly due to a lack of raw material resulting from factors beyond the employer's control.[377]

On April 15, 2002, a labor inspector conducted an inspection during which she documented insufficient raw materials and work orders.But the inspector failed to determine whether the employer was at fault and whether the suspensions were legal.[378]STIT submitted a request to the Labor Inspectorate to rule on this outstanding matter.[379]On April 19, 2002, the Labor Inspectorate issued a resolution stating that the legality of the suspensions was outside the jurisdiction of the Labor Inspectorate and, instead, "corresponds exclusively to the . . .the Labor Courts."The resolution also voided the April 15, 2002, inspection results.[380]

Complicity in Labor Law Violations: Granting Illegal Employer Requests

On August 21, 2001, workers at Tainan declared a one-day strike.[381]On November 1, Tainan's former head of human resources, Angela ZuleymaParada, reportedly called eleven workers to her office, seven of whom were union leaders, and informed them that unless they signed letters confessing to their participation in the "violent events" of the August 21 strike, she would not pay them their salaries for the two-week period from October 15 to October 28, 2001.[382]The workers refused to sign the letters, and Parada refused to pay them, depositing the eleven workers' paychecks with the Section of Third-Party Funds in the Custody of the Accounting Department of the Ministry of Labor.[383]On November 5, 2001, workers submitted a formal request to the Labor Inspectorate for an inspection into the failure to pay their salaries.[384]No inspection was conducted.

Roughly a week later,workers, along with a delegate from the Human Rights Ombudsman's Office, went to the Ministry of Labor to claim the workers' salary checks.They were reportedly attended to by an Accounting Department official, Jos Alfredo Flores Montano, who refused to turn over the checks to the workers unless they signed"receipts of confession," provided by the employer.[385]According to Antonio Aguilar Martnez, associate labor rights ombudsman, Flores mistook the ombudsman's delegate for a Tainan worker and "said you have to sign our sheet here . . . .When the [delegate] said that he was from the ombudsman, [Flores] denied him a copy of the sheet."[386]The ombudsman's office delegate reportedly asked Flores to explain the legal basis for the procedures being followed, to which he responded only that he "had received instructions in that regard," without specifying who issued the instructions.[387]Pressured by the ombudsman's office delegate, Flores ultimately turned the workers' salaries over to them without requiring them to sign the requested confessions.[388]In an interview with Human Rights Watch, Antonio Aguilar Martnez asked:

How is it possible that the ministry is practically converted into the company's bank? . . .It's a mentality that favors business.It doesn't bother them to violate the rights of workers.The officials follow orders from above in favor of the companies.[389]

Salvadoran Social Security Institute

The ISSS is El Salvador's public health care system and consists of hospitals and clinics throughout the country.As early as 1999 and continuing through this writing, labor unrest has plagued the public health sector, largely in response to government proposals and efforts to privatize the system.The privatization plans are vehemently opposed by workers' and doctors' unions.The labor conflict has reportedly included retaliatory firing of union leaders, union member dismissals without the due process required for public sector employees, illegal salary withholdings, and forced eviction of union members from their offices by riot police.[390]The case study below provides only one example of labor law violations reportedly suffered by ISSS doctors and workers and the Ministry of Labor's inadequate response.

Failure of Labor Inspections to Follow Proper Procedures

In October 2001, the Salvadoran Social Security Institute deducted one day's pay from doctors' salary checks with no explanation.According to a Union of Medical Workers of the Salvadoran Social Security Institute (SIMETRISS) leader and the union's attorney, the deduction was likely taken in retaliation for a one-day work stoppage staged by the doctors.[391]Between November 20 and December 4, 2001, SIMETRISS presented to the Labor Inspectorate requests for inspections in eight ISSS facilities, alleging that "our affiliates have been the victim of salary deductions in the month of October 2001, without any reason given by the ISSS, nor any relevant legal justification."[392]

On January 25, 2002, the Labor Inspectorate reportedly issued a resolution stating that, based on its inspections, there was no violation of the doctors' labor rights and the case was, therefore, closed.The resolution came as a complete surprise to the doctors, none of whom had been interviewed, much less knew that the inspection was being conducted.In reaching their decision, the inspectors apparently had relied on an inspection of company pay records.A pay records review, however, can only address one of the two key issues raised by the doctors; records can speak to whether salary deductions were taken but not to whether they were legal.For labor inspectors to determine whether the salary deductions were illegal, they must investigate and assess the validity and legality of the employer's justification for the deductions, considering evidence such as employer and worker testimony.

On February 1, 2002, the general secretary of SIMETRISS learned that on January 11, 2002, the Labor Inspectorate had indeed ordered an "inspection of pay records of the doctors in the installations of the administrative offices of ISSS."[393]Notified of the inspection twenty days after it occurred, SIMETRISS was unable to participate in the inspection process.Furthermore, the inspection order had not required that workers be interviewed during the inspection nor that the legal cause for the deductions be determined, as workers had requested.[394]

If the union had been notified, it likely would have challenged the accuracy of the employer salary records.Ernesto Gomez, a lawyer for SIMETRISS, told Human Rights Watch that most public sector workers are paid through direct deposit of their salaries into their bank accounts, rather than with check or cash.Workers are reportedly required to sign pay records as proof of payment before they can confirm the money has actually been deposited in their accounts."Looking at the pay records does not tell you anything.You have to see the workers' accounts. . . .Having seen the pay records is not conclusive."[395]For example, according to an October 2002 report from the Human Rights Ombudsman's Office, the ISSS failed to pay roughly sixty-five workers for the month of September 2002, even though "they were given pay receipts and made to sign the respective records of salary payment."[396]

The January 25 resolution also stated that the Inspectorate would not provide the complainant doctors with a copy of the inspection report, as it was confidential.[397]In a communication to the Labor Inspectorate, SIMETRISS complained that the inspections violated articles 47-51 of the Law of Organization and Functions of the Labor and Social Welfare Sectors, which require the participation of the complainant workers, preparation of the inspection report in the worksite, and provision of a copy of said report to each of the parties.[398]SIMETRISS concluded, "These supposed legal requirements were absolutely not upheld, given that the Ministry of Labor and Social Welfare relied exclusively on the records of the ISSS."[399]SIMETRISS also asked, "[H]ow can a process be confidential for . . . the parties?[W]here does that position come from?How can it be that the director general of the Labor Inspectorate denies a worker who is part of the process access to his own legal report, alleging, ironically, 'confidentiality'?"[400]On April 26, 2002, SIMETRISS filed a complaint with the Division of Disputed Administrative Matters of the Supreme Court, requesting that the procedures followed by the Labor Inspectorate in this case be declared illegal.[401]No ruling had been issued at the time of this writing.