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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—for which 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 Martínez 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 Quiñónez, 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.