VI. THE LABOR MINISTRY'S ROLE

The STECAMOSA Petition to Negotiate

The union's petition to negotiate followed the general form required by law, according to labor law experts. The union presented its request to the labor ministry stating that it had gathered the support of 25 percent of the workforce and included a draft document that was to be the basis of negotiations with the company. The union submission did not and was not required to give details on its membership beyond its declaration that it had exceeded one-fourth of the workforce. On September 1, the union of workers of the two Phillips-Van Heusen plants in Guatemala City, Camosa I and Camosa II, held an assembly as the culmination of a months' long membership drive. The leadership declared at that extraordinary general assembly that the union's membership had passed the 25 percent threshold required for negotiations under article 51, and that a petition to this effect, if approved by thatassembly, would be submitted to the labor ministry and the company. The assembly gave its approval and the submission was made the following day.

The labor ministry's dossier on the STECAMOSA petition to initiate collective bargaining begins with a formal request by the union, on September 2, 1996, to initiate collective bargaining on conditions of employment with the company. The petition, in accord with established procedures, submitted a draft collective agreement to be delivered by the labor ministry to the company. A response by the company was required within thirty days. The union's petition, again in accord with established procedures, stated simply that its membership exceeded one-fourth of the total workforce, that a draft collective agreement was proposed as a basis of negotiation, and that it was prepared to initiate such negotiations. The union informed Human Rights Watch that it delivered a copy of the draft agreement to Camisas Modernas legal representative Yvonne de Sevilla on the afternoon of September 2; the company was formally provided a copy of the petition by the Labor inspectorate on September 6. In the labor ministry's subsequent handling of the case, efforts were made to establish the company's total number of personnel and the total union membership as of September 6.

The documentation provided with its petition to negotiate included no precise detail on the union's membership on which the calculation of one-fourth the workforce was based. A certified statement of relevant sections of the proceedings of the union's September 1, 1996, general assembly was attached to the union petition filed with the ministry but did not cover all agenda items. Notably absent from this statement was the text of the minute on agenda item 4, the assembly's consideration of the applications of new members, ratification of their membership, and the union's actual strength after the membership drive. The union was not required to give such details on its membership as part of its petition to negotiate, but its failure to do so was both misleading and to its disadvantage. The result was that the sole reference to an actual membership number was to the basis on which a quorum was identified: the number of members formally inducted as of the previous general assembly.24 Complicating the union's case, and providing the initial basis for the company's challenge to it, was the document's summation of the assembly as having reached a quorum based on a total membership of just 135:

First the Secretary General welcomes the participants attending and confirms that there are one hundred and twenty of the one hundred and thirty-five members the union has, who constitute a legal quorum to carry out this assembly so that the latter is opened.25

Similar language and a reference to the figure of 135 members appears in the minutes of the general assembly of July 27, 1996, which did not consider the matter of new membership.26 Guatemalan labor norms and the STECAMOSA internal statutes identify new members whose applications have not yet been approved as members "ad-referendum": they become full-fledged members after they have been welcomed to the union at a general assembly and their membership is announced and approved by this body. Generally it is only after their candidacy is ratified in this form that their names are registered with the labor ministry. Similarly, in establishing a quorum for such assemblies, only those whose membership has been ratified by the previous general assembly are counted in determining whether the required quorum is present.

One hundred and thirty-five, the total membership prior to the welcoming of new members in the September 1 assembly, fell short of the one-fourth required. Accordingly, the summary minutes became the cornerstone of the company's challenge. The company subsequently maintained that the entire workforce numbered 664, a figure the labor ministry did not question: 25 percent, then, would have been 166.

Collective bargaining agreements under article 51 are not common in Guatemala's industrial sector, and are, indeed, without precedent in the maquila sector. The procedure for the initiation of such negotiations is, however, generally straightforward. If documentation of a union's membership has recently been submitted to the labor ministry, through the filing of its padrón, or official list of members with the labor registry of the General Labor Office, a union's membership numbers may be accepted without further question and a company may be instructed to initiate negotiation. Unions are required to update the registration of their membership lists on a yearly basis (and may at any time do so). There is no legal requirement that these lists include the signatures of those registered. Thelist as a whole is presented for registration on the authority of the union's elected leadership, which in turn bears legal responsibility for its accuracy.27

The STECAMOSA union had last provided its membership list (of 131 members) to the labor registry on August 30, 1995. But the updated list of members, including the new members approved by the September 1, 1996 general assembly, was not formally registered with the labor registry until over six weeks after that date. This tactical decision, taken to protect union members from feared harassment by the company, complicated the union's efforts to show they had organized over 25 percent of the work force. This decision did not, however, alter the legal standing of these members or the union with respect to its petition to initiate negotiations. It was a lost opportunity on the part of the union to oblige the labor ministry to move promptly in pressing Camisas Modernas, S.A. to proceed to a negotiation process. The union's failure to register its new membership prior to the presentation of its petition to invoke article 51 could have been promptly remedied, had the labor ministry encouraged and facilitated this (it did not).

That the summary minutes referred expressly to "the 135 members the union has" at the opening of the general assembly was misleading and unhelpful to the union's case, in that it did not reflect new members who had not yet been ratified by the assembly. The decision not to refer to the total number of union members reflected the advice of the union confederation with which the STECAMOSA workers were affiliated (the Guatemalan Confederation of Trade Union Unity, CUSG). While not in itself improper, it clouded the matter and encouraged a dispute over numbers. The reference to a strength of just 135 members would dominate the official record of proceedings until the ministry abruptly brought them to a close without resolution.

Phillips-Van Heusen's Response

PVH responded to the petition to begin negotiations by arguing that it was not compelled to do so under article 51 because the union had not met the requirement of having organized one-fourth or more of the workforce. The company's challenge to the union petition, filed on September 23, 1996, pointed to the general assembly minutes as constituting an acknowledgment by the union that its total membership, in going into its request for negotiation was, in fact, just 135. The minute was presented as evidence that the union's membership did not reach the threshold of one-fourth of the workforce, the total level of which the company declared to be 664. On this basis, the company's legal representative (personnel manager/deputy manager Yvonne de Sevilla) requested the labor ministry to confirm this as fact and to ratify its contention that the company was under no obligation to negotiate.28

The union responded promptly but ineffectually to clarify the matter, handicapped by its failure either to have registered its membership as of September 1996 with the labor registry, or to have an up-to-to-date membership ledger, certified by the labor ministry-a matter discussed further below. Although failure by STECAMOSA to meet its procedural obligations to maintain accurate and current books under the law did not affect the extent of union support, in fact, it did affect the ability of the labor ministry to verify the union membership's claim. In October, members of the STECAMOSA Executive Committee took part in a number of meetings in the offices of the labor inspectorate and at the Camosa II plant, in which the union's submissions were rejected as without standing largely on matters of form (although they were attached to the dossier). The CUSG legal advisor was not present at these proceedings. A list of 170 members, provided by union delegates on October 8, 1996, was described in the minute of that meeting: it was "not registered in the General Labor Office, nor [does it bear] the seal or signatures ofunionized workers, nor is it stamped or signed by the General Labor Office."29 There is no requirement in law, however, for such information to be stamped and registered to be considered in labor proceedings of this kind. The documentation presented, regardless of form, did provide labor inspectors-and the company-with preliminary information to the effect that the union would, in fact, be able to prove a membership of over one-fourth of the workforce (which if the latter was confirmed to number 664 would have been 166).30 The following week, on October 18, the union's membership list was formally registered with the General Labor Office's labor registry, identifying a total of 177 union members.

The delay in the registration was attributed by the union in part to its concerns that to do so prior to the initiation of the proposed negotiations would have jeopardized the union's case, by exposing its membership to reprisals by Camisas Modernas, SA. At the same time, union officials told Human Rights Watch that the formal registration of its membership with the labor registry was delayed by developments at Camisas Modernas following the announcement that the union had demanded the right to negotiation. The union maintains that it held off finalizing its membership rolls until it could confirm with each registered member an intention to stand firm as a union member after September 2, as pressures to withdraw from the union increased. As evidence to this effect, Human Rights Watch was shown the membership applications of twelve individuals indicating that they were union members as of September 2, but who the union said it had excluded from the lists prepared for the labor ministry, including the October 18, 1996 official list. Claims that union members were subjected to intimidation, improperly encouraged to withdraw from the union, or offered exceptional severance payments should they leave employment are discussed further below.

What is beyond dispute is that a significant number of union members left the company or signed letters withdrawing from the union in the months before and in the two weeks after the union's September 2 petition. As noted, forty-six of the 131 union members registered with the labor ministry as of August 1995 had quit the company by August the following year: an attrition rate of 34 percent (in contrast to an overall turnover estimated by managers at no more than 2 to 5 percent). Human Rights Watch confirmed the resignation of nineteen union members from Camosa II's finishing department alone during the first nine months of 1996, although the total appears to have been higher. Union sources claimed twenty-four members in the finishing department had resigned in this period, while company personnel records on this highly unionized department, that were reviewed by Human Rights Watch showed the resignation of thirty of its staff between November 1995 and October 1996.

Human Rights Watch identified thirteen union members who quit the firm in August 1996 and seven who left between September 2 and 15. Others submitted formal letters withdrawing from union membership in the latter period. The significant flux in membership precisely in the weeks immediately before and after 1 September, reflected in the more than 200 membership forms examined by Human Rights Watch (and, based on a much smaller sample examined, in the company's personal records), makes the delay in the presentation of a firm membership list to the labor registry understandable.31

An updated list of the union's members as of September 2, 1996 was registered with the labor registry on October 18.32 The list provides the personal data normally provided in submissions to the ministry's labor registry, including the date on which each member joined the union or reconfirmed his or her prior membership with a new application form; these dates and other personal data were subsequently cross-checked with each (signed) application form by Human Rights Watch. Only those members whose membership had been approved by September 2, 1996 were included.33

Human Rights Watch spent eight hours reviewing over 200 union membership forms in an effort to determine the union's actual membership levels since 1995, and the accuracy and the integrity of the union's records.34 Human Rights Watch compared each form with the name listed on the padrón and checked to see that the information (including name, cédula, and date of joining the union) provided on the application matched the information on the padrón. While there were certain minor discrepancies in the personal information provided in some of the documentation, such as errors in which numbers were transposed, the forms seemed a genuine record of the union's membership. Of the 189 forms which were signed and dated as of September 2, 1996, the Human Rights Watch review found three that were substantially incomplete, included information that was inconsistent with other records examined; were unsigned; or could otherwise be considered invalid. Human Rights Watch believes that the forms were accurate and reflected more than the 25 percent support required under the law. On this basis Human Rights Watch believes that the STECAMOSA union did have the necessary support from the labor minister to compel collective bargaining.

Human Rights Watch also examined the union's official records of its general assemblies and executive council meetings, both of which date only from January 1996, at which time these volumes were registered andauthenticated by the labor ministry. According to the union, and the official record of its general assemblies, a strength of 177 was already established, and announced, at the general assembly of September 1, 1996. The union said it was unprepared at that time, however, to make its membership public due to what it described as "the anti-union" position of the company. The full minutes of the September 1, 1996 general assembly described the membership drive of the preceding period, as well as what the union executive committee presented as its net result: a contingent of 177 union members, more than enough to meet the goal of one-fourth of the workforce. The text of the relevant paragraph follows:

Fourth: the Secretary of Organization reports that a process of consciousness raising is being carried out with all of the workers of the enterprise so that they join the union and exercise their right of freedom to form trade unions, that this has been done because of the anti-union attitudes of the company and because there have been changes in personnel with regard to the contracts of employment which have obliged us to have the workers who were affiliated previously fill out new application forms to ratify their affiliation and that the new members fill their applications to join and that in consequence at the time of holding this assembly there are one hundred and seventy-seven workers registered with the union who have signed the corresponding applications to join the union. Continuing, the list of members is read and the welcome to the new members is given, with those present informed that this list containing the names of one hundred and seventy-seven members will be sent to the General Labor Office for its corresponding registration, because the list presented in 1995 does not reflect the present reality of the union.

The exclusion of this paragraph from the summary minute submitted with the union's petition appears to have been a strategic error, whatever its stated rationale. While the union's anticipation of measures by the company to take advantage of full disclosure may have been a real concern, it was also clear that the union feared making known the names of likely waverers, who could at any moment renounce their membership, by too hastily producing a final list for registration at the culmination of its membership drive. Human Rights Watch's review of the union membership, as noted, revealed a particularly high rate of resignations from the plant by union members and leaders in the months immediately preceding the presentation of the petition.

The Official List and the Proposed Official Count

The list of 177 members registered on October 18 by the labor registry was not taken into account in subsequent labor ministry deliberations. As noted, this certified, updated list had, to the knowledge of Human Rights Watch, accurately reflected the membership at the time of the union's most recent general assembly, on September 1, 1996, at which members ad referendum were inducted into the union. Human Rights Watch's review of membership records was also able to confirm that the membership list registered on October 18 had duly reflected confirmed withdrawals from the union between September 2 and October 17 as well as the rash of resignations by

union members from the company in this period.35

The labor ministry's resolutions on the STECAMOSA petition to negotiate did not reflect the union's October 18 membership entry in the labor registry until December 4. On that date, Labor Minister Ortíz Moscoso met with representatives of the union, who raised the matter of the union's registered membership once more. In a questionable interpretation of legal principles in the minister's resolution of that date, the document was said to have been excluded from consideration on the grounds that it had not existed prior to the challenge having been made by Camisas Modernas, S.A. to the union's request to negotiate:

Considering: That in fulfilment of the dispositions that regulate due process, this Ministry, in considering the petition that is resolved today, gave an audience to the Union of Workers of Camisas Modernas, Sociedad Anónima, which organization limited itself to declaring that on October 18 this year it presented to the Department of Labor Registry (an entity distinct from the Inspectorate General of Labor) a new list of members with 177 members, a matter that for the purposes of the resolution challenged and this resolution can have no legal effect, in that it is a general principle of law that every resolution must take in account only what existed at the moment in which the request that was its origin was presented, in this case September 23, 1996, the date at which the petitioner requested the verification of the number of members comprising the union in question.

In a telephone interview with Human Rights Watch on March 13, 1997, former Labor Minister Ortíz Moscoso asserted that he was unable to introduce the additional evidence of the union strength as of September 6 into the dossier without himself violating the procedures governing his ministry. He said that the union entered the process basically admitting that it had insufficient numbers, an apparent reference to the summary minute of its general assembly. He said further that he had himself suggested to the company that the union's October 18 registration with the ministry showing 177 members be added to the file on the case, but that the company vigorously and aggressively opposed this, precluding this step. The union could, he asserted, request that a new proceeding be opened, or take the matter to the courts.

This would have been appropriate if the purpose of the proceedings had been highly formal in nature. The proceedings in question were, instead, of an administrative nature. As such, especially under labor law the process should have been subject to amendments, corrections and additions at any time, with a view to establishing the facts under consideration. The labor code's principle of tutelaridad, or protection, of labor rights has already been discussed. A further guiding principle, also set out in the preamble to the labor code, is that labor law is "realistic and objective," an important distinction setting it apart from the emphasis on procedure in other Latin American legal traditions. The norm in civil courts, for example, is that facts are without standing if they have not been established in a formal procedure; to wit, the saying "What is not in the dossier is not in the world" ("Lo que no está en el expediente no está en el mundo"). In labor law, however, in accord with the principles of "objectivity and realism," the facts must prevail over any deficiency in the form. Although the principles of objectivity and realism should minimize formalism in the implementation of Guatemalan labor law, the labor ministry's rejection of documentation exemplified the preeminence of form over substance in the deliberations.

The substance consisted, precisely, of the facts of union membership as of September 6, 1996. In effect, the October 18 document, duly certified by the union officials legally qualified to represent the union in its affairs as of September 2, could have been accepted as a sworn affidavit whether or not it was registered with the General Labor Office prior to September 6-or September 23. That it was certified as such by the Ministry of Labor's own labor registry on October 18 was, at bottom, a confirmation of this status for the purposes of this case. It certified, on the responsibility of the union's executive committee, information concerning the standing of its membership as of September 2, 1996; as such, its admissibility at any stage of this administrative procedure would not appear to have violated principles of administrative law. The minister's resolution further disparaged the registration by stressing that the labor registry was an office separate from the labor inspectorate. The offices, both under the labor minister, are just down the hall from each other (Human Rights Watch visited both).

Equally to the point, the ministerial resolution's identifying the date of the company's challenge, September 23, as a cut-off for the admissibility of evidence, disregarded the ministry's own obligation to apply the law with regard to the union's original petition to negotiate. While the company petition might reasonably have been considered jointly with a ministerial inquiry on its own initiative, there was in fact no such inquiry. By subordinating consideration of the union's petition, including the exclusion of substantiating evidence, to the subsequent challenge by the company, the ministry appears to have engaged in both procedural irregularities and apparent partiality. The labor ministry had a primary obligation to consider matter underlying the company challenge: whether, in fact, thecompany was in breach of article 51 of the labor code in its refusal to discuss or negotiate an agreement with the union. The establishment of the facts supporting the union's proposal in this regard should have drawn upon all information available then and at the time of the inquiry: not just records duly registered in the labor registry, the courts, or in other fora prior to the company's counter-claim on September 23.

The Ministry of Labor could, it seems, take into account any and all forms of evidence in its deliberations; indeed, not to do so in a matter concerning a union's efforts to engage in negotiations in accordance with the law would appear to be an abdication of its obligations to protect workers' rights. The recognition of the registration of the list, in this procedure, would not in any event have represented a conclusion of the verification procedure requested: it did, however, indicate that the union's proposal to negotiate was well-founded, and that the administrative procedure resulting from this should not be cut short. A physical count of the membership, conducted under conditions negotiated with the two parties (but which could ultimately be imposed by the ministry), was well within the scope of the ministry's prerogatives and had, in fact, been accepted as desirable by both sides.36

The minister's exclusion of evidence had other consequences: the rejection of updated lists threatened to skew any recount of union membership, depending whether labor inspectors were to call only names from out-of-date lists in the count. Labor inspectors charged with this task, however, declared that the count would be based on the 1995 list. The initial proposal for a count was made on October 14, 1996, when Labor Inspector Hugo Leonel Morales Tello visited the Camosa II plant and met with union delegates and the company representative in the administrative offices there. The thrust of the latter was to order a recount of union members, "taking into account that their affiliation should have been prior to the date of notification of the Draft Collective Agreement....on September 6 this year." The inspector in turn indicated the time and place of the recount: 10:45 am on October 16, 1996, in the management offices of Camosa II.

The company was advised in the October 14 document that it must make available payroll and social security records from the month of August in the course of the inspection, and permit the employees who are members of the union from Camosa I and Camosa II to be present in the Camosa II plant for the count (it agreed to do so). The union, in turn, was instructed:

a) To make available the list of workers affiliated to the union duly stamped and registered by the General Labor Office, which should be prior to the date of notification of the Draft Collective Agreement of Conditions of Employment, that is prior to September 6, 1996;

b) To make available for their review the Books that are established by Article 225 (a), with the exception of the book of Accounts, and this union is advised that it should inform its members so that they take part in the recount procedure...

The document ends with an admonition to both parties that failure to comply "with just one of these requirements will result in this dossier, with a reference to the respective noncompliance, being forwarded to the courts..." Given the consistently negative record of the labor courts in the defense of labor rights, this offered little prospect of a prompt and fair resolution of the matter.

Labor Inspectors Hugo Leonel Morales Tello and Walter Mansilla Peralta went to the Camosa II plant on the morning of October 16, where the count was to have taken place in the administrative offices. The company, the previous day, had circulated a notice to employees announcing the inspector's visit,

for which they will be called only to the office of personnel, where they are to indicate yes or no as to whether they were members of the union prior to [September 6]. At the same time those who were not members of the union can make this known to the inspectors.37

The provision in law for inspectors to interview workers in private might well have offered a means to establish the objective conditions of the union's membership with a view to giving force to article 51. This course was not, however, taken by labor inspectors. The conditions of the scheduled count, at which labor inspectors were to have interviewed workers one by one as they were called into the personnel office, in the presence of the company's officials, were a serious concern of union officials. A background of intimidation had been described by union delegates in their October 8 meeting with labor inspectors; this was a primary basis given by these union representatives for the objection to the proposed procedure.38

The Union's Counter-Proposal and Failed Count

In a petition of October 15, the union requested the withdrawal of resolution no. 7247 ordering a count, issued the preceding day by the General Labor Inspectorate, citing a range of legal arguments in challenging the procedures that it was to have set in motion (the petition also challenged the contents of the act of October 14, 1996 by which resolution 7247 was communicated to the union). Of immediate urgency, the petition requested the suspension of the proceedings announced for October 16, at which time a count of union members was to have been conducted. The union would a week later (October 23) set out a proposal for an alternative procedure in a meeting with the deputy minister of labor; this proposal, discussed further below, was never formally incorporated into the adjudication process, nor was it the basis for discussions by which an acceptable procedure could have been agreed to.

The union's petition of October 15 took issue with, among other things, the inspectorate's persistence in founding its consideration of the actual strength of the union on long outdated records, rather than in a review of current membership records at the time a formal recount was to be taken. The October 14 inspectorate resolution had, indeed, reflected an apparent presumption that the union had not achieved the membership level asserted, by stressing the evidentiary value of the 1995 registry and by repeating and failing to correct an erroneous report from the labor registry presenting an even lower number (which referred to twenty-nine members). At the same time, the inspectorate wrongly characterized the absence of signatures on the informal list presented in an early meeting at the ministry as invalidating that list.

The labor inspectorate, on the basis of a technicality that was the ministry's own fault, did not even consider the merits of the union's October 15 petition at the time or subsequently. The number of the resolution was held to have been misstated in the petition: the labor inspectorate had in the usual manner spelled out the number, then given it in numerals: these, however, did not match in the ministry document. The numerals, twice repeated, identified the resolution as no. 7247; the number in words, however, was seven thousand two hundred forty-two. The laborinspectorate, however, rejected the petition on the grounds that resolution no. 7247 had been issued.39 In subsequent summations of the case, the ministry added further that the nature of the resolution in question was such that it was not subject to challenge.40

The petition added that there is no legal provision in Guatemalan law requiring a confirmation of membership must be based on the last membership list filed with the General labor Office (of which the labor registry is a part). The latter is a yearly, not monthly, obligation of unions. As a consequence, the union protested that the labor inspectorate could not reasonably take as a basis for a recount for the purposes of the proposed negotiations the content of the previous year's membership list, but rather "that it should take into account the membership registry that the union presents at the moment such a recount is carried out." Three days after presenting the petition on October 15 41, the union did, in fact, file its updated membership list with the labor registry.42 The list reflected the rash of resignations of union members from the company in the weeks after the collective bargaining proposal was presented, as well as the withdrawal of some others who had been union members at the time the original petition was submitted.

The October 15 petition also correctly noted that article 51 of the labor code, on which the proposal for the negotiation of a collective agreement was founded, does not establish a procedure by which the 25 percent union membership could be confirmed. Inspector General Roberto Rodríguez verified to Human Rights Watch that there was no regulation prescribing the procedure with which to conduct a recount.43 The procedure invoked by the Inspectorate General of Labor was, however, the procedure generally used by that office. It was described by labor lawyers consulted by Human Rights Watch as normal, if unfair, for labor inspectors to require union members to go before the personnel manager or other similar plant officials in confirming membership. At the same time, the union's procedure in delaying the formal registration of its 1996 list with the labor registry appears to have been correct.

Although the union's formal petition to halt the proceedings was not accepted, the inspection was, in fact, halted when, on the morning of October 16, it became clear to the inspectors present at Camosa II that the union would not cooperate. In their formal minutes of the affair,44 the labor inspectors noted that the company had issuedorders to its various departments to permit employees to take part without restrictions and with pay. The inspectors also noted that the company had informed them that the previous day a notice had begun to circulate, apparently from the union, advising employees not to participate (a copy of the notice as attached to the case dossier). On the part of the union, the record declared that

They stated....that they were duly informed of the motive of this procedure and with this respect indicated that they had reached a consensus in which the workers affiliated to the union are not in accord with the recount fixed for this day because of a years-long situation in which reprisals are taken against union members, and on the other hand we have the right to inform the members of the situation in which we find ourselves[.] [T]his is the explanation of the circular that was distributed in Camosa One and Camosa Two, at the same time we want to mention that a petition to revoke the resolution was communicated to us with a date of October 14 this year to the Inspectorate General of Labor, a simple copy of which we provide to be attached to this minute.

The labor inspectors subsequently decided to suspend the proceedings.

Selective Accounting

In contrast to the questioning of union membership, the figures for the total number of employees of the plants Camosa I and Camosa II, based on payroll and Social Security records as of August 30, 1996, were not challenged by labor inspectors.45 The figure of 664 staff accepted at that time remained the basis for the calculation of the 25 percent union membership throughout the case. Labor inspectors are not believed to have excluded any employee named in the August 30 records although a significant number of staff left the company in August 1996.46 At the same time, the union's claims during a meeting of October 8 that twenty-three names on the payroll records were immediately recognized as those of people who had left the company, and that the union was not permitted to comprehensively review the records or to challenge particular names on the list, were not taken into account by the ministry. Again, the overall impression received by Human Rights Watch was that information favorable to the union's petition to initiate collective bargaining with PVH was discounted, set aside or ignored by labor ministry officials.

The labor ministry's procedures also changed in the immediate aftermath of the union's having registered its official list with the labor registry. A series of formal meetings, called by the labor ministry, were inexplicably held without the normal, and required, official minutes (the acta) by which official procedures are normally documented. Formal procedures were represented by Labor Minister Ortíz Moscoso and Deputy Minister Rivas Sanchez as informal measures to mediate between two parties in conflict, rather than to reach a determination on matters of fact and law. These included the October 23 meeting at which the union had sought to agree procedures with labor officials for a count of its members.

A memorandum of October 23, 1996 from Deputy Minister Rivas Sanchez, for example, was the sole record of an important meeting called by Minister Ortíz Moscoso (who in the event, did not himself attend).47 The memorandum notes that the meeting was scheduled to bring together the union and the company, "with a view to mediating in the situation established." The company is said to have excused itself from attending, "as a consequence, it said, of the union having impeded a recount of its members." The meeting was important, however, not least because the two representatives of the union were accompanied by their lawyer, Lic. Alfaro Mijangos, and efforts were made to correct what appeared to have been fundamental misrepresentations of the union's position in earlier labor ministry documents. In conclusion, Deputy Minister Rivas Sanchez declared his willingness to continue mediating in the matter and agreed to circulate the memorandum of the discussion to interested parties.48

The principal clarification, which should have been reflected in the adjudication, was the union's statement that it was not opposed to a count but that this should not be conducted under what the union asserted was "pressure." The union's criticism of the procedure initially proposed was that it exposed its members to what it claimed was unacceptable intimidation. The minutes did not reflect this criticism. A detailed alternative procedure for a count was proposed by the union and summarized in Deputy Minister Rivas' memorandum. The union submitted an alternative venue for the count, proposing that neither union officers nor company officials be present, and requested certain guarantees that employees would be shielded from intimidation.49

Although the proposal was tabled with the deputy minister and sent subsequently to the company, the union received no formal response. The labor ministry barred any further discussion of procedures for a count and made no further effort to carry one out. According to union officers, union lawyer Juan Francisco Alfaro Mijangos telephoned Deputy Minister Rivas one week after the meeting to ask whether the union's procedural proposal had been accepted. He was reportedly informed that the company had refused to accept a count on such terms, on the grounds that it would be a "show" (the union, for example, proposed that the count be held in a union hall). This information was not reflected in subsequent formal documents of the labor ministry. The union's formal proposal to reconsider conditions for a recount was, finally, omitted from formal summations of the case initiated with the September 2 union petition. In subsequent documents closing the case, Labor Minister Ortíz Moscoso and InspectorGeneral of Labor Rodríguez declared flatly that the union had opposed a count of its members.50 This was a misrepresentation of the facts.

The Ministry of Labor and Social Welfare

The ministry did not pursue a course of action by which the facts of this membership could conclusively be established. Rather, it accepted challenges made by the Phillips-Van Heusen company uncritically, refused to consider the merits of a verification procedure proposed by the union, refused to accept documentary evidence of union membership that had been registered with the General Labor Office, and abruptly curtailed the procedure by declaring its inability to reach a conclusion.

In a resolution of November 11, 1996, the Inspector General of Labor summarized the record of previous meetings and procedures concerning the company's challenge to the union petition to negotiate, and declares the labor ministry's role in the affair at an end.51 The introduction of the document frames the issue strictly in terms of the company's challenge to the union's strength:

The matter at hand is the resolution of the petition filed by the Camisas Modernas, S.A. to determine whether the union of this company has more than 25 percent of the workers unionized, and therefore, if such company is required to negotiate a draft of the Collective Bargaining Agreement.

Its point of departure is set out in an initial clause, that "On September 6, 1996 under adjudication No. 1859-96, the Labor Inspector General's Office served Camisas Modernas, S. A. a draft of a Collective Bargaining Agreement presented by the union of such company," followed by a series of clauses setting out a summary of the proceedings, and highlighting the confused nature of the information reviewed. This done, the inspector general declares the concerned parties free to take the matter to the courts, meaning that the labor ministry's role in the matter wasdeemed to be completed.52 Further consideration of the case was left up to the courts-although Guatemala's labor courts had no record of prompt, independent, or effective resolution of such cases.

Notwithstanding the registration of the union's membership on October 18, Ministry of Labor documents concerning its petition continued after that date to reflect only the registration information of previous years. The ministry also referred in its concluding resolutions on this matter to the repetition of information which its own departmental units had clarified as mistaken. In this respect, a memorandum of October 2, 1996 was placed in the dossier from the ministry's Departamento Nacional de Proteccion de Trabajadores, indicating that the last official registry of STECAMOSA indicated that it had just twenty-nine members. This is corrected in a memorandum in the dossier from the same office, of October 17, 1996, which states simply that it is to correct the information provided previously; the last official list presented to the labor registry for registration was, in fact, of 131 members.53

The labor ministry, by citing both the uncorrected figure of twenty-nine and the 1995 list of 131 continued to represent the union's claim as either mischievous or not serious; and to indicate that the information required for a determination of the actual membership was so impossibly tangled as to make the real truth unattainable. An example is the summation of the case signed by Minister of Labor Arnoldo Ortíz Moscoso and First Vice-Minister Oscar Augusto Rivas Sanchez on December 4, 1996, rejecting a petition to revoke the resolution to close the case.54 In this instance, the presentation of information already established by labor authorities as having been considered only as a consequence of the ministry's own error, while excluding the union's legally registered list of October 18, violates the labor ministry's fundamental obligations to protect workers' rights and to promote collective bargaining.

Considering:

That on examining the records of the case it is found that the Act of the Extraordinary General Assembly of the union...indicates that the union has 135 members; that in the Act of October 7 of the same year...it is shown that the representatives of the union in question themselves indicated to the Inspectors on duty that they did not have at their disposition the list of members of the union; that in the act of October 8 of the same year....the Labor Inspectors established that the employer provided for their review the payroll list and the [Social Security] records, with a total of 664 workers. That at the same time, in that act, it was established that the list of union workers was of 131 members, but that only 85 of them were working and members of the union; that the Union also presented an additional list of workers that did not meet legal requirements; that, in addition, according to the reform of the Department of Worker protection of October 2 this year, the last list of members of the Union has 29 members; and finally, that as established in the Act of October 16, 1996...when the Inspectorate General of Labor attempted to carry out a recount of the unionized workers, the labor side indicated that it was not in accord with this and did not agree to its being carried out; all of which results in there being a reasonable and well founded doubt concerning the number of members of the Union, which justifies the conclusion of the resolution that it is challenged concerning this them;

In sum, the labor ministry did not encourage and facilitate negotiation in its handling of the STECAMOSA petition. A review of the dossier compiled by the labor inspectorate on the intended negotiation further suggests that the labor ministry abdicated its responsibilities to determine whether the union had the requisite membership under article 51 to compel collective bargaining. This obstruction resulted in part from unnecessary administrative obstacles, reinforced by what appears to have been a misinterpretation of the legal norms governing the admission of evidence into an administrative process. The exclusion of the October 18 list, as a certified affidavit concerning membership as of September 2, was prejudicial to a determination of the facts.

The union's membership records might reasonably have been requested and examined as a first step toward establishing the facts. This would have been consistent with the Ministry of Labor's obligations to facilitate and promote negotiation. The union's membership could have been promptly established had the ministry acted dutifully. Because the evidence examined by Human Rights Watch indicates that the one-fourth threshold had, in fact, been passed at the time of the petition, the ministry's actions had the effect of denying the union the opportunity to begin collective bargaining.

Had the Ministry of Labor established the facts, as requested by both the company and the union in question, a precedent would have been set with which many Guatemalan and foreign employers in Guatemala's maquila sector would have been uncomfortable. Major manufacturers are on the record in opposition to trade unions in their plants and few unions have established a foothold in this sector. Company spokesmen have described compulsory negotiations with unions as potentially crippling. The labor authorities' maintenance of the status quo meant that not one of Guatemala's overseas assembly plants operates under a collective labor agreement.

The Secretary General informs the assembled that we have the right to request the negotiation of a collective agreement on conditions of employment in conformity with the first paragraph of article fifty-one (51) of the Labor Code, as we have a trade union organization that is functioning in accordance with the law with juridical personality and representation recorded in the respective registries and we constitute the percentage of members that is required by the law. On this basis, the decision to request the negotiation of the Draft Collective Agreement on Conditions of Employment was submitted for the consideration of the Assembly..."

The competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer's recognition of that union for collective bargaining purposes.

4.1 That it take place outside the Company premises, proposing as an alternative the headquarters of the Power Workers Union.

4.2 That it be made eight days after the Company provides notification of agreement.

4.3 That in order to carry out the count, permission be granted to all employers to be absent with pay;

4.4 That during the count neither personnel of confidence of the Company (Managers and Supervisors), nor Officials of the Union be present.

4.5 That the Company agrees to permit the count and abstains from adopting conduct that affects the workers.

4.6 That the company make no announcement with respect to the count, limiting itself to providing the permission requested for participation in the count which will be notified solely by the Union.

4.7 That the process be carried out by Labor Inspectors, who should accept as identity documents only La Cédula de Vecindad (municipal identity cards) or drivers licenses.

WHEREAS, pursuant to the provisions of article 51 of the Labor Code, an employer employing the services of more than a fourth of the unionized workers is required to negotiate a collective bargaining agreement with the union, when it requests this. The same norm establishes several rules to be observed in the negotiation of collective agreements, among them, that if within thirty days of filing the application the parties have not reached an agreement, either party may go to the labor courts to open proceedings concerning the collective dispute in question.

WHEREAS, under article 274 of the Labor Code, the Department of Labor and Social Security is responsible for the direction, study and resolution of all matters in connection with labor and social security and for monitoring, applying and improving all such provisions regarding these matters; provided, however, that such are not within the jurisdiction of the courts. In the present case, it has clearly been established that the procedure to follow is jurisdictional, which prevents the Inspectorate General of Labor from pronouncing upon the substance of the matter;

THEREFORE, this Labor Inspector General's Office based on what is stated above, and pursuant to article 203 of the Political Constitution of the Republic of Guatemala, articles 51, 274, 374 and 378, second paragraph, of the Labor Code and article 57 of the Law of the Judicial Organ,

RESOLVES:

a) To inform the parties of the result of the actions carried out by the Labor Inspector General's Office and

b) To authorize them to apply to the applicable jurisdictional organization in order to obtain any statement available at law.