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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 Ruy César 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.



202 Written complaint submitted by SITEAIES and the Federation of Public Service Workers’ Trade Unions of El Salvador (FESTRASPES) to the ILO, October 22, 2001, pp. 1-2.

203 Letter from Ruy César Miranda, president, CEPA, to Jorge Isidoro Nieto Menéndez, minister of labor, December 10, 2001, pp. 1, 3.

204 Ibid., p. 3.

205 E-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 9, 2003. Some of the suspended union members, however, were reportedly not officially registered as union affiliates, fearing reprisals for union membership. Ibid.

206 Written complaint submitted by SITEAIES and FESTRASPES to the ILO, October 22, 2001, p. 2; letter from Joaquin Alonso Campos Gutiérrez, general secretary and legal representative, SITEAIES, to Legislative Assembly leadership, October 4, 2001, para. IV; Human Rights Ombudsman’s Office, resolution, No. LP-0777-01, December 20, 2001, p. 11.

207 Human Rights Watch interview, Ernesto Gómez, labor lawyer, San Salvador, February 15, 2003; e-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 12, 2003.

208 Letter from Ruy César Miranda, president, CEPA, to Jorge Isidoro Nieto Menéndez, minister of labor, December 10, 2001, p. 3.

209 Ibid.

210 ILO, Complaints against the Government of El Salvador presented by FESTRASPES, ICFTU, Public Services International (PSI), the International Transport Workers’ Federation (ITF) and the Workers’ Union of the National Institute for Public Employees’ Pensions (SITINPEP), Report No. 328, Case(s) No(s). 2165, Vol. LXXXV, 2002, Series B, No. 2, para. 251(b).

211 Letter from Ruy César Miranda, president, CEPA, to Jorge Isidoro Nieto Menéndez, minister of labor, December 10, 2001, p. 1.

212 Labor Code, arts. 33, 36(1).

213 Ibid., arts. 33, 35, 44.

214 Letter from Ruy César Miranda, president, CEPA, to Jorge Isidoro Nieto Menéndez, minister of labor, December 10, 2001, p. 3.

215 ILO, Complaints against the Government of El Salvador presented by FESTRASPES, ICFTU, PSI, ITF and SITINPEP, para. 251(c).

216 ILO Committee on Freedom of Association, Introduction to Report 330 (March 2003), Report No. 330, Vol. LXXXVI, 2003, Series B, No. 1, para. 83

217 Written request submitted by Dagoberto Ramírez Amaya, first secretary of conflicts, SITEAIES, to the director general of the Labor Inspectorate, September 24, 2001; written complaint submitted by SITEAIES and FESTRASPES to the ILO, October 22, 2001, p. 2; Human Rights Watch interview, Joaquin Alonso Campos Gutiérrez, general secretary, SITEAIES, San Salvador, February 5, 2003; e-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 8, 2003.

218 E-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 8, 2003.

219 Human Rights Watch interview, Joaquin Alonso Campos Gutiérrez, general secretary, SITEAIES, San Salvador, February 5, 2003; e-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 8, 2003.

220 E-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 8, 2003.

221 Rosario Eugenia Alfaro, labor inspector, inspection report, September 26, 2001.

222 Written complaint submitted by Miguel Ernesto Sibrian, secretary of organization, SITEAIES, to the Civil Court of Zacatecoluca, Ref. No. 122-2001-4, September 24, 2001. There is no labor court in Zacatecoluca. In areas where no labor court exists, civil courts exercise jurisdiction over labor law claims.

223 Labor Code, art. 539.

224 Civil Court of Zacatecoluca, resolution, Ref. No. 122-2001-4, October 1, 2001, secs. II, IV.

225 Written request submitted by Dagoberto Ramírez Amaya, first secretary of conflicts, SITEAIES, to the director general of the Labor Inspectorate, September 24, 2001.

226 Rosario Eugenia Alfaro, labor inspector, inspection report, September 26, 2001.

227 Human Rights Ombudsman’s Office, resolution, No. LP-0777-01, December 20, 2001, p. 12.

228 Ibid., pp. 13, 14, citing Guillermo Cabanellas, Compendio de derecho laboral, Tomo I [Compendium of labor law, Volume I], p. 848.

229 Ibid., pp. 14, 19.

230 Letter from Ruy César Miranda, president, CEPA, to Jorge Isidoro Nieto Menéndez, minister of labor, December 10, 2001, pp. 5-6.

231 Labor Directorate, document, February 26, 2002; ILO, Complaints against the Government of El Salvador presented by FESTRASPES, ICFTU, PSI, ITF and SITINPEP, para. 243; e-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, July 17, 2003.

232 Human Rights Ombudsman’s Office, resolution, No. LP-0777-01, December 20, 2001, pp. 16, 17.

233 Ibid., pp. 20-21.

234 Communication from José Rodolfo Aguilar Bolivar, legal representative, CEPA, to judge of the Fourth Labor Court of San Salvador, Ref. No. 3323-I-2001, December 11, 2001.

235 Human Rights Watch interview, Antonio Aguilar Martínez, associate ombudsman for labor rights, Human Rights Ombudsman’s Office, San Salvador, February 14, 2003.

236 Labor Directorate, agreement between CEPA and SITEAIES, February 26, 2002.

237 See, e.g., Labor Directorate, summary of mediation session between CEPA and SITEAIES, October 18, 2001; Labor Directorate, summary of mediation session between CEPA and SITEAIES, October 22, 2001.

238 Human Rights Watch interview, Joaquin Alonso Campos Gutiérrez, general secretary, SITEAIES, San Salvador, February 5, 2003.

239 Labor Directorate, document, February 26, 2002; e-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 12, 2003.

240 E-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 9, 2003; Human Rights Watch interview, Joaquin Alonso Campos Gutiérrez, general secretary, SITEAIES, San Salvador, February 5, 2003.

241 ILO Committee on Freedom of Association, Introduction to Report 330 (March 2003), para. 82.

242 E-mail message from Noé López, secretary of organization, SITEAIES, to Human Rights Watch, April 9, 2003; Human Rights Watch interview, Joaquin Alonso Campos Gutiérrez, general secretary, SITEAIES, San Salvador, February 5, 2003.

243 Human Rights Watch telephone interview, José Andrés Márquez, head of human resources, CEPA, January 30, 2003.


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December 2003