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Cablegate: Mexico,S Supreme Court (Sort of) Rules in Favor Of

VZCZCXRO7313
RR RUEHCD RUEHGA RUEHGD RUEHHA RUEHHO RUEHMC RUEHMT RUEHNG RUEHNL
RUEHQU RUEHRD RUEHRS RUEHTM RUEHVC
DE RUEHME #2834/01 2632147
ZNR UUUUU ZZH
R 192147Z SEP 08
FM AMEMBASSY MEXICO
TO RUEHC/SECSTATE WASHDC 3323
RUEHC/DEPT OF LABOR WASHINGTON DC
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE
RUEHXC/ALL US CONSULATES IN MEXICO COLLECTIVE
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RHMFIUU/DEPT OF ENERGY WASHINGTON DC
RHMFISS/DEPT OF HOMELAND SECURITY WASHINGTON DC
RHMFIUU/CDR USSOUTHCOM MIAMI FL
RHEHAAA/NSC WASHINGTON DC

UNCLAS SECTION 01 OF 04 MEXICO 002834

SIPDIS

DEPT FOR DRL/AHW AND ILSCR, WHA/MEX. USDOL FOR ILAB

E.O. 12958: N/A
TAGS: ELAB ECON ENRG PHUM PGOV PINR MX
SUBJECT: MEXICO,S SUPREME COURT (SORT OF) RULES IN FAVOR OF
SECRET BALLOT UNION ELECTIONS

REF: REF: 07 MEXICO 5161

1. Summary: On September 10, Mexico,s Supreme Court issued
a ruling that would require the use of secret ballots in
union elections. Previously, under Mexican Federal Labor
Law, secret ballots were an option but not a requirement.
The governmental bodies responsible for establishing the
procedures for and validating the results of union elections
are the Conciliation and Arbitration Councils and, up until
now, in the absence of a specific directive on how to
organize election, rarely opted to use secret ballots to
resolve union contests or disputes. Over the years, the
optional use of secret ballots prompted numerous court
challenges seeking to establish when and how they could be
used. These cases resulted in a string of conflicting
decisions related to the procedures for holding union
elections. Now, as a result of the Supreme Court,s
decision, all prior conflicting rulings on the use of secret
ballots have, in theory, been overturned. The decision to
mandate secret ballots is being hailed by union leaders and
labor activists associated with Mexico,s main opposition
political party as a significant human rights victory.
Undoubtedly the ruling is a significant step forward with the
potential to dramatically change how labor unions function in
Mexico. However, the ruling applies only to Conciliation and
Arbitration Councils and to cases where the choice of union
representation is at issue. It does not in any way touch on
the manner in which internal elections for union officials
are held. It remains to be seen how vigorously GOM labor
authorities will move to fully implement the ruling on secret
ballot elections. End Summary.


SECRET BALLOTS ARE OPTIONAL
---------------------------

2. Securing the right to a secret ballot in union elections
has long been one of the highest priorities for labor
activists in Mexico. The goal of these activists was to
establish a legal right to secret ballot elections both when
choosing union officials and when determining which union
would represent the workers in collective bargaining
negotiations. Until recently, Mexican Federal Labor Law
(FLL) permitted but did not mandate the use of secret ballots
in union elections. In fact the FLL provided no clear
guidance of any kind as to the procedures to be followed in
union elections. Because of this lack of specific direction
on the procedures for conducting union elections, the FLL had
traditionally been interpreted as meaning that a secret vote
was just one option available from a broad range of
possibilities when organizing union ballots.

3. In the absence of a specific legal requirement to use
secret ballots most labor authorities throughout Mexico left
decisions on the procedures for holding union elections up to
the offices of federal or state Conciliation and Arbitration
Councils. More often than not these Councils looked for the
path of least resistance in resolving labor disputes. The
Councils would organize secret ballot elections provided all
parties to a given dispute indicated a willingness to resolve
their differences in advance. However, if one of the
disputing parties objected to secret ballot elections, the
Councils unfailingly argued that they had no authority to
impose a secret ballot on anyone unwilling to participate.

4. Post notes that although the various Councils were
unwilling to impose a secret ballot on those disinclined to
participate in this type of election; they did not hesitate
to compel the use of one of the other available options for
holding elections. The &open vote8, the most common
procedure used to conduct union elections, gathered workers
together in a place deemed appropriate by a Council and
required a public show of hands. Open votes always took
place in front of contending unions and company management.
The standard practice of routinely imposing an &open vote8
or one of the other available election procedures prompted a
long string of court challenges by the losing side once a
Council denied them the option of a secret ballot.


CONFLICTING COURT DECISIONS
---------------------------

MEXICO 00002834 002 OF 004

5. Mexican FLL allows for appeals to the country,s judicial
system in both federal and state cases where a dispute exists
over some aspect of a union election. Although there is no
way to accurately gage the validity of the grievances filed
by the losing side in a union election, the complainants
routinely claimed that their side would have won if only the
Council (federal or state) had agreed to put the matter to a
secret ballot. The clear aim of those seeking judicial
redress was to have their arguments validated and to obtain a
court order requiring a secret ballot &do over8 of the
disputed election but instead, they were met with a series of
conflicting court decisions that were all over the judicial
map.

6. Generally when a court attempted to tackle a complaint
based on a Council decision to disallow a secret ballot, it
would ultimately be confronted with the realization that
Mexico,s FLL provided no clear guidance on the use of such
procedures. In fact the FLL (specifically Article 931 of the
FLL) is all but silent on the procedures to be used when
conducting union elections. Given the law,s lack of
specific guidance, Mexican courts viewed themselves as
empowered to decide disputed labor cases in any way they
deemed best. In some cases the courts ordered new secret
ballot elections and in others they did not, choosing instead
to validate whatever alternative procedure had already been
used to resolve the union election in question.

7. This &do as you deem best8 approach did result in some
instances where the courts ordered new secret ballot
elections, but the number of these cases was never very high.
Although the number of such cases was limited, they were
high enough to prevent either the Councils or the various
elements of Mexico,s organized labor movement from knowing
exactly where the judiciary stood on the use of secret
ballots when conducting union elections. Ultimately, the
incidence of court rulings ordering secret ballot elections
and the lack of any consistency in these judgments was high
enough to encourage those unhappy with the outcome of a union
election to appeal to the judiciary in the hopes of obtaining
more favorable results. Groups arguing in favor of secret
ballot elections wanted to use the secret ballot process when
choosing union officers and when determining which union
would represent the workers in collective bargaining
negotiations.


THE SUPREME COURT FINALLY DECIDES
---------------------------------

8. The case which finally prompted Mexico,s Supreme Court
(SCJN) to take on the issue of secret ballots involved a
dispute between the National Miners Union (SNTMMSRM) and the
National Mine Exploration and Exploitation Workers Union of
the Mexican Republic (SNEEBMRM), which were both competing
for recognition as the legal bargaining representative for
the workers at a copper mine. Until 2006 the SNTMMSRM had
been the only union of mine workers in Mexico. The SNEEBMRM
is a newly formed union that is rumored to have considerable
GOM support. As reported in reftel, in September 2007 the
newly formed SNEEBMRM won a series of &open vote8 elections
against the National Miners Unions that would have been
viewed as seriously flawed by international standards. The
new union,s electoral victories were contested in court by
the losing union and ultimately made its way to Mexico,s
SCJN in early 2007.

9. In deliberating on the dispute between the two miners,
unions, the SCJN pointedly acknowledged that FLL
(specifically Article 931) provided no clear guidance on the
procedures to be used for conducting union election.
Nevertheless, the court said, a systematic analysis of the
concepts underlying the FLL, and a deliberate examination of
the fact that a union vote is the ultimate expression of the
will of the workers, forced the SCJN to conclude that the law
should guard the right expression by protecting the
confidentiality of a worker,s vote. In addition, the Court
stated that its deliberations were strongly guided by the
ideals contained in the Universal Declaration of Human Rights
and by ILO Convention No. 87 (Freedom of Association and
Protection of the Right to Organize). Finally, the Court

MEXICO 00002834 003 OF 004


affirmed its clear intent to protect workers from any and all
external pressures that could influence their votes.
Consequently, the SCJN decreed that secret ballot votes were
now mandatory in any instance when two or more union competed
for recognition as the legal bargaining representative.

10. In making its ruling on the mandatory use of secret
ballots the SCJN sought to eliminate the ambiguity in the FLL
that had caused so many problems in the past. The Court did
this by providing specific guidelines for the conduct of
union elections. Since the SCJN,s ruling on secret ballots,
all elections in which two or more unions competing to
represent a group of worker must include a complete list of
all workers employed by a particular company, the use of
printed voting ballots, the use of appropriate booths and
voting boxes, the presentation of an official photo
identification by all workers attempting to vote which must
be cross-reference with the employee list provided by the
employer, prior notification of the date and time of the
election as well as the selection of a neutral voting place,
and onsite presence of representatives from the competing
unions during the election process.


PRAISE FOR COURT DECISION
-------------------------

11. The GOM,s Secretariat of Labor (STPS) hailed the
Court,s decision on secret ballot elections as a
&transcendental step toward liberty, democracy and labor
transparency in the country from which there would be no
going back8. This comment was essentially echoed by the
Presidents of the Federal Conciliation and Arbitration
Councils who committed all of the offices within the
jurisdiction of GOM federal labor authorities to fully
implement the Court,s ruling. In addition to the praise the
court decision received from the STPS and the federal
Councils it was also hailed by union leaders and labor
activists associated with Mexico,s main opposition political
party, the Party of the Democratic Revolution (PRD) as a
&historic8 human rights victory. These accolades from the
PRD affiliated groups are particularly significant in that
these persons and organization rarely have complimentary
things to say about the administration of labor law in Mexico.


COMMENT
-------

12. There is no doubt that the Supreme Court,s decision to
mandate secret ballot elections is a significant step forward
in the administration of Mexican labor law. Moreover, this
ruling also has the potential to dramatically change how
labor unions function in Mexico. Mexico has a considerable
number of labor unions that are all too eager to subordinate
worker interests to those of employers for the right price.
Up until now challenging these employer friendly unions has
been difficult and occasionally dangerous to workers who
openly and publicly declared themselves in opposition to
these labor organizations. Now, at least in theory, the
ability of unscrupulous employers or corrupt unions to
pressure, intimidate or improperly influence a worker,s vote
will be greatly limited. It remains to be seen, however, if
GOM labor authorities will vigorously move to fully implement
the ruling on secret ballot elections, particularly since the
use of these union voting procedures will clearly disrupt
unethical behavior by those who have been able to practice it
with impunity for an unpleasantly long period of time.

13. As significant as the SCJN ruling on secret ballot union
elections is, it still, unfortunately, falls short. Labor
activists in Mexico are rightly pleased with the Court,s
decision but once the pleasure in obtaining a long sought
goal subsides, they will realize that their battle is only
partially won. While the Court,s ruling should change the
way unions compete against one another, it would not alter
internal union activities. Although workers will now have
more legal protections to decide which union will represent
them, they still will not have the right to vote in secret
ballots when electing new leadership. Open votes are still
the standard rule for internal union elections. Because of
this, union leaders, once elected, are almost impossible to

MEXICO 00002834 004 OF 004


remove no matter how poorly they serve the interests of the
workers. Open vote elections have allowed some labor leaders
to amass incredible amounts of wealth and power with little
or no accountability. Mexico,s constitution guarantees
nearly complete union autonomy and as a result it will be
very difficult for the Courts to compel them to adopt a more
democratic and transparent way of electing their leaders.


Visit Mexico City's Classified Web Site at
http://www.state.sgov.gov/p/wha/mexicocity and the North American
Partnership Blog at http://www.intelink.gov/communities/state/nap /
GARZA

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