Definitive Report - Report No 122, 1971

Case No 619 (Honduras) - Complaint date: 19-NOV-69 - Closed

1. 84. This complaint, by the World Confederation of Labour, appears in a communication dated 19 November 1969 sent direct to the ILO. It consists of a copy of a memorandum drafted by the body known as the " Authentic Trade Union Federation of Honduras " (FASH). The complaint was duly referred to the Government, which sent in its observations thereon in two communications, one dated 25 September and the other 1 October 1970.
2. 85. Honduras has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 86. The facts of the case, as extracted from the complaint itself, the Government's first communication and the abundant supporting documents submitted by Government and complainants alike can be summarised as follows.
2. 87. On 10 June 1969 a group of employees of the Bank called " El Ahorro Hondureño, S.A." formed a union and on the 25th of the month the provisional executive of the union notified the labour authorities of the union's establishment so as to obtain the protection of the law. In a decision dated 26 June 1969 the Director-General of Labour declared that the union enjoyed state protection; the persons concerned, and the Bank, were informed accordingly.
3. 88. The very same day the management of the Bank assembled various members of the union just set up. The complainants affirm that the manager forced these employees to sign a statement withdrawing from the union. The manager states that at this meeting there was a friendly discussion as to whether or not it was desirable to have a trade union within the Bank. One point discussed, so he affirms, was the possibility that in the event of a labour dispute, the Bank's employees might show their solidarity with another union by recourse to extreme measures, such as shutting down the Bank, contrary to the public interest, and despite the competition of foreign banks, in which no trade unionism existed. Furthermore, the workers had been told that the advantages enjoyed by them had not been the fruit of trade union battles, but had been freely granted by the Bank. As a result of this conversation, the workers had freely signed statements withdrawing from the union; such statements had been referred to the labour authorities.
4. 89. Nevertheless, three days thereafter, these same workers wrote to the manager to say that their statements of withdrawal were null and void, since they had been constrained to make them by the bank authorities. In its turn, the union executive wrote to the manager to say that to destroy the union the Bank had " had recourse to measures similar to those employed by a prison warder, culminating in illegal threats and acts of constraint " and " shameful acts ".
5. 90. On the basis of the statements of withdrawal from the union and of a complaint alleging constraint, lodged by the Central Trade Union Federation of Free Workers of Honduras (FECESITLIH), the labour authorities decided to investigate the matter. Various officials of the Ministry of Labour questioned the employees who had attended the meeting referred to above. As is shown in the report dated 11 July 1969 (available to the Committee), all but one of these people said that they had withdrawn under the threat of dismissal. In the light of the investigations made by its officials, the General Labour Inspectorate on 2 September 1969 fined the manager of the Bank for a breach of freedom of association. This decision was upheld by the Ministry of Labour and Social Welfare, and the Bank's appeal to the Supreme Court of Justice was rejected.
6. 91. In the meantime, the Bank " in a summary procedure before the Primary Labour Court " asked for permission to dismiss the members of the provisional executive of the union, invoking section 112, clause B, of the Labour Code (" any act of violence, abuse, assault or serious insubordination committed by the worker in the course of his work against members of the employer's family, members of the managerial or supervisory staff or other workers "). The Court ruled that the language used by the executive in its memorandum to the manager (see paragraph 89 above) was punishable under the aforementioned clause; it also took the view that the employees concerned had freely withdrawn from their union. The Attorney-General for Labour (responsible to the Ministry of Labour and Social Welfare) had been against the Bank's petition on the grounds that the management had used pressure against the Bank's employees; that, he felt, ran counter to the legislation in force, which protected the right to organise.
7. 92. While thus appealing to the labour courts, the Bank had begun an action for slander against those employees who had attended the meeting mentioned above, and an action for defamation against the executive of the union. This action against the executive alleged the use of insulting language (see paragraph 89 above). The action taken against the other employees was based on the contention that they had voluntarily withdrawn from their union while later telling the manager that they had been constrained by the Bank to do so-a calumnious assertion. These cases had resulted, respectively, in charges and warrants of arrest against the accused; the latter were currently released on bail.
8. 93. The union itself was given official recognition on 13 August 1969, and on 18 September it was registered with the Ministry of Labour and Social Welfare. According to the manager, the members of the executive of the union were not in fact dismissed, although the Bank bad been authorised to dismiss them. Nevertheless, several members of the executive in fact left the Bank and withdrew from the union, while other members of the union also decided to withdraw from the organisation. Finally, on 6 November 1969, the remaining nine members met and decided to call for the union to be wound up, since it now had fewer than the ten members laid down in the Labour Code. Commenting, the manager stated that, " the good will shown by the Bank, visible in its attitude throughout, had at last been understood by those few employees who, innocently led astray by outside advice, had been ill-advised enough to take action damaging to the Bank ... These few employees ... decided to declare that the union could no longer exist, since its membership had fallen below the minimum ".
9. 94. The narrative of events shows that right from the beginning the manager had been against the creation of a union and that within a very few months of its establishment the latter ceased to exist, its membership having fallen below the prescribed minimum. The meeting attended by the bank authorities and a group of persons belonging to the union just set up assumes great importance in this case. With regard to this meeting, there are two contradictory versions of what happened; one alleges that the employees were forced to withdraw from their union, and the other that they did so voluntarily, as the result of a discussion as to whether or not it would be a good thing for a union to be set up within the Bank. From the documents referred to the Committee by Government and complainants, and especially from the resolution adopted by the General Labour Inspectorate (whereby, after investigation, the manager was fined for a breach of freedom of association), and from the report dated 11 July 1969, setting forth statements made by those employees who had attended the meeting referred to above, the Committee concludes that certain acts of antitrade union discrimination, contrary to Convention No. 98, do indeed appear to have occurred. Neither the verdict rendered by the Labour Court nor the decisions taken in the actions for defamation and slander contain anything which would enable the Committee to reach any other conclusion; nor does it appear from the texts in question that the statements made by those employees who had alleged pressure and constraint were disproved. In reality, none of the legal decisions given specifically deals with the facts which, according to the employees concerned, induced them to withdraw from their union and later to go back on their decision.

B. B. The Committee's conclusions

1. 95. The Committee observes that, on the one hand, the labour authorities punished the manager of the Bank for acts in breach of freedom of association, and that on the other hand, a criminal court had taken the view that the employees' denunciation of such acts constituted slander. The Committee recommends the Governing Body to express to the Government its concern at this state of affairs, as well as to point out the considerations set forth in the foregoing paragraph.

The Committee's recommendations

1. 96. As regards the permission given to dismiss the members of the union executive, and as regards the action for defamation brought against these members, it should be pointed out that the expression used-indicating that the management of the Bank had " had recourse to measures similar to those employed by a prison warder and culminating in illegal threats and acts of constraint " and " shameful acts "-is based on statements made by employees as a result of which the manager of the Bank was later fined. Furthermore, this language was used by certain employees in their capacity as trade union officials on the occasion of a labour dispute (when violent language is not infrequently employed by both sides), and not by these employees in the course of their work against their employer, as provided in section 112 of the Labour Code. The Committee further recommends the Governing Body to bring these considerations to the Government's attention.