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Río Lempa Hydroelectric Executive Commission

The Río Lempa 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 Hernández

Mario Roberto Carranza Hernández began working for CEL on August 1, 1988.²⁹³ On November 24, 2000, he was elected secretary of finance for the CEL sectional of STSEL. 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 Noé Zelada, 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, Rolando Borjas Munguía, 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, he alleged 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 Martínez, 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 Río Lempa 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 Confecciones Ninos 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 Confecciones Ninos 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 Confecciones Ninos 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.