Interim Report - REPORT_NO52, 1961

1. 163. Having taken cognizance of the case at its 26th Session (November 1960), the Committee submitted to the Governing Body the interim report contained in paragraphs 307 to 334 of the 49th Report of the Committee, which was approved by the Governing Body at its 147th Session (November 1960).
2. 164. The case comprised five sets of allegations, concerning, in order, anti-union acts by employers, the banning of union meetings on premises provided for the workers, interference with union meetings, the detention of trade union leaders and a draft decree. In respect of the last of these the Committee submitted to the Governing Body its final recommendations, which are set out in paragraph 334 of its 49th Report. The remaining allegations, together with others subsequently made by the Chiriqui Land Company Workers' Union in letters dated 20 October 1960 (to which the Government replied by a letter dated 8 February 1961) and 5 February 1961 with respect to its eviction from the union offices and by the FUTRA in a letter dated 1 February 1961 with respect to its application for registration, are examined below.
3. 165. Costa Rica 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

• Allegations relating to Anti-Union Acts by Employers
  166. 166 The FUTRA, in its communication dated 12 September 1960, and the Chiriqui Land Company Workers' Union, in its communication dated 22 August 1960, declare that on several occasions they have requested the Minister of Labour to intervene, as a conciliator or by initiating court action, to put an end to the persecution of the trade unions and of their leaders by the banana companies through newspapers subsidised by the companies (cuttings are annexed to the complaint). Among particular instances cited by the FUTRA are alleged pressure on workers at Corredores by their employers to cause them to leave their union, and alleged moves by the Costa Rican Banana Company and the Chiriqui Land Company to set up an employer-dominated " Committee of Employees " in rivalry with the union, supported by a press campaign, leaflets dropped by aircraft, etc. (as described in the copy of the FUTRA's letter of 4 April 1960 addressed to the Minister of Labour, annexed to the complaint). In these machinations, declare the complainants, the employers often use senior employees as their agents, so that they can disclaim responsibility. The Chiriqui Land Company Workers' Union also complains in its communication dated 22 August 1960 of alleged attempts by the employers to use the Committee of Employees to smash their union. Both complainants declare that, although their Government 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), all their requests to the competent Minister to intervene, by conciliation or by initiating court action, have been ignored (they furnish copies of various letters stated to have been addressed to the Minister in this connection).
  167. 167 In its communication dated 5 February 1961 the Chiriqui Land Company Workers' Union declares that the United Fruit Company has taken many employment regulation measures in order to reduce production costs and that, when the unions have resisted, the Company has spent thousands of dollars on propaganda stigmatising the unions as communist. It is alleged that the Government has allowed persecution of the unions to continue and that the Ministry of Labour is making a pretence of conducting studies and investigations and is placing obstacles in the way of unions which do not obey the dictates of the United States Embassy. This is the purpose, declare the complainants, of a notice recently issued warning the unions of the possible consequences of " illegal activities " on their part. The complainant furnishes a copy of the notice, according to which the Ministry warns that it will ask the courts to dissolve any union which departs from its basic purpose of securing economic, social and occupational advantages and which engages in or supports any political activity.
  168. 168 The Government replies to the charges made by the FUTRA in its communications dated 1 and 2 November 1960 in the following terms. The Ministry of Labour, declares the Government, is unjustly accused of not having intervened as it should have done, as a conciliator or by initiating court action, when in fact on the receipt by the said Ministry of the FUTRA's request to this effect it detached a labour inspector to make exhaustive inquiries into the circumstances of the facts complained of. According to the report submitted by this official - the text of which is annexed by the Government-the accusations made are without foundation. The fact that no legal action has been undertaken as a result of these events-continues the Government-cannot be interpreted as a denial of justice, since on the one hand, in the light of the evidence available, the Government could not share the view of the complainants that such acts had been committed or that they were unlawful, and on the other hand, in virtue of clearly stated legislation in force, any person, whether an ordinary citizen or a legally constituted body, who considers that his rights have been infringed has free access, for the purpose of redress, to the courts, which are moreover, in virtue of the " power to prosecute ex officio ", obliged to carry the procedure through all its processes until a judgment is given.
  169. 169 To refute the allegation that it has brought pressure to bear on workers to cause them to leave their union, the Government likewise draws attention to the report of the labour inspector. This official describes interviews he had with various persons directly concerned in the events in question, to wit: the Head of the Office of Labour and Social Affairs of the Banana Company, some of the workers who had left the union, and finally with the originator of the complaint, Mr. Solis Barboza. According to the first of these, in no case had the company brought pressure to bear to cause workers to leave the union, and those who had left had done so of their own free will. The workers with whom the labour inspector spoke confirmed this, saying that their withdrawal was entirely voluntary, and questioning revealed that they were not aware of any of their fellow-workers having been the object of pressure of this kind. Finally, Mr. Solis Barboza, when pressed to give the full name of any worker who had been thus coerced, found himself unable to remember a single one.
  170. 170 The Government's reply next refers to the allegations that the Costa Rican Banana Company and the Chiriqui Land Company sponsored the so-called " Committee of Employees " to counteract the activities of the union. The Government declares that this committee is a de facto association formed by workers of the two largest banana companies, but not as an agency of them. In support of its declaration it annexes two telegrams which were sent to the Minister of Labour, one by the Manager of the Costa Rican Banana Company and the other by the Committee of Employees. Both state that the committee in question is not a dependent body of the undertakings, does not take orders or instructions from them and receives no financial help from them. The Government also annexes an advertisement published by the Committee of Employees on 13 February 1960 in the newspaper La Nación explaining the nature and objectives of the said committee in answer to those who contested that it was linked with the undertakings. In the opinion of the Government the existence of this committee is perfectly normal under the democratic system of freedom of association as laid down in sections 25 and 28 of the Political Constitution of Costa Rica. Without any evidence-argues the Government-that the committee acts as an agency of the undertakings, no investigation can be undertaken into its activities on the basis that they are attacks on freedom of association. In the meantime, continues the Government, any expression of opinion on its part which appears to the unions to be insulting or libellous must come under the jurisdiction of the Penal Courts, before which the interested parties may bring the appropriate actions. The same explanations are given in the letter sent by the Minister of Labour to Mr. Solis Barboza on 29 July 1960, a copy of which is annexed.
  171. 171 The Government denies responsibility with regard to the allegation that the undertakings, so as to be able to act with impunity, make use in their anti-union campaign of senior employees, in particular of a member of the Legislative Assembly, who has affirmed that links exist between the unions in the Southern Pacific banana areas and international communism. Freedom of expression-observes the Government-guaranteed by the Constitution, prevents the Ministry of Labour from prohibiting or punishing such statements. It is for the offended persons themselves to apply to the courts so that they may determine where the responsibility lies.
  172. 172 The first question to be considered is whether it was really the duty of the Government to intervene, as claimed by the complainants, by initiating court action or as a conciliator. The Committee considers that the question of whether a government should exercise statutory powers to institute legal proceedings in cases of alleged interference by an employers' organisation with a workers' organisation is a matter for the government itself to decide, having regard to whether or not proceedings are justified and are likely to be successful in any given case, provided that refusal to act by the government does not amount to a denial of justice or to a failure to ensure the application of a guarantee provided for in an international instrument, such as a Convention, which that government has ratified.
  173. 173 In the present case, as indicated by the Government, before making any move it wished to ascertain the veracity of the facts complained of and the infringements of the law involved. Its further action would be decided on the basis of the results obtained. The facts complained of amounted in essence to two: pressure by the undertakings on their employees to cause them to leave their union, and the sponsoring by the undertakings of a " Committee of Employees " set up, according to the complainants, in rivalry with their union. It was necessary to establish first of all if such events had taken place, and, if so, whether they took on the character of a violation of trade union rights. With regard to the first fact mentioned above, the Ministry of Labour detached one of its inspectors to investigate the circumstances of the complainants' accusations. The report made by this official led the Government to deduce that the accusation was without foundation. With regard to the second fact, the Government accepted the specific statements of the Committee of Employees and of the management of the undertakings, according to whom the two bodies had no connection with each other. The Government draws attention to this evidence in stating that since it did not share the opinion of the parties concerned, it did not feel obliged to take the steps requested by them. Now, for the refusal of the Government to take the matter before the courts to have been, in these circumstances, a denial of justice, the complainants would have to have no other means available of obtaining vindication of the rights which they considered to have been infringed. But the Government declares that they could have applied to the courts themselves under the provisions of the Labour Code of 1943 and its amendments. Section 557 provides ample opportunity for recourse to the courts " to institute the appropriate proceedings in case of offences against the labour and social welfare laws ". Section 558 goes even further by stipulating that the reporting of such offences shall be obligatory for "...(b) all private individuals who become aware of the commission of an offence which constitutes a contravention of any of the prohibitory provisions of this Code ". Finally, the competence of labour judges and courts to take cognisance of such disputes implies that they should take action on such complaints as may be submitted to them in conformity with procedure whenever the acts of individuals or organisations appear to be in conflict with the statutory provisions.
  174. 174 It is also necessary to consider whether failure by the Government to start proceedings is consistent with the international obligations which it has assumed. In ratifying the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), the Government of Costa Rica undertook to guarantee the implementation of the guarantees contained in Article 2 of the said Convention, which provides that " workers' and employers organisations shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. In particular, acts which are designed to promote the establishment of workers' organisations under the domination of employers or employers' organisations, or to support workers' organisations by financial or other means, with the object of placing such organisations under the control of employers or employers' organisations, shall be deemed to constitute acts of interference within the meaning of this Article." In these conditions the Government is under the obligation, in order to give effect to the provisions of this Convention, to take steps to ensure that the occupational organisations are provided by the national legislation with the means to enforce the rights which are guaranteed to them under the said provisions.
  175. 175 Before attempting to reach final conclusions on this question as to whether the refusal by the Government to intervene was justified or not from the point of view of national justice or international responsibilities, there is one essential element in the Government's reply which appears to call for further clarification. It does not seem clear which sections of the Labour Code could have been invoked by the complainants as a basis for initiating legal action in respect of an alleged violation of the provisions of the said Code. Sections 70 (c) and (i), 271 and 275 (d) contain various guarantees designed to protect the rights of individual workers against acts of this nature by employers, in the same way as they are protected under the terms of Article 1 of the above-mentioned Convention. But the Code does not appear to contain provisions dealing with the protection of workers' organisations against acts of interference by employers or employers' organisations as laid down in Article 2 of the said Convention.
  176. 176 In these circumstances the Committee has decided, before making definitive recommendations to the Governing Body, to request the Government to specify which sections of the Labour Code could have been invoked by the complainants in bringing an action before a labour court to obtain vindication of their allegations of interference with the rights, not of individual workers, but of their organisations, particularly as concerns the question of the " Committee of Employees ", or, secondarily, what other legal proceedings could have been undertaken by the complainants to enforce their rights in the event that they succeeded in proving their allegations. The Committee also requests the Government to furnish its observations on the communication dated 5 February 1961 from the Chiriqui Land Company Workers' Union.
• Allegations relating to the Banning of Certain Trade Union Meetings
  177. 177 In one of the documents annexed to the FUTRA's complaint of 12 September 1960 it is stated that the Costa Rican Banana Company, through the Security Service of Palmar Sur, imposed a ban as from 6 September 1960 on trade union meetings in the sectors occupied by the workers, where they had been held, according to the complainants, for over 17 years.
  178. 178 In its communication dated 5 February 1961 the Chiriqui Land Company Workers' Union alleges that the Union general meeting was to have been held on the same day at Laurel in the premises, owned by the Company, in which such meetings had been held for the last eight years. Permission for the meeting had been given by the Ministry of the Interior but, despite this, it is alleged, the Chief Political Officer for the Golfito area (the local representative of the President of the Republic) stated that the meeting could not be held " because the Company will not permit it ".
  179. 179 The Government replies, in its communication of 2 November 1960, to the charges made by the FUTRA, by stating that it has not considered it proper to order the companies to permit meetings of workers on land over which, in accordance with the law, they have the right of possession; but that in conformity with its policy of obtaining the maximum number of safeguards for the Costa Rican trade union movement, it expects to be able to secure the inclusion, and the acceptance by the companies, of provisions in the trade union regulations now being prepared which will permit such meetings provided that they are for exclusively trade union purposes. The Government has not yet had opportunity to present its observations on the matters raised by the Chiriqui Land Company Workers' Union.
  180. 180 In a previous case, when the Committee was called upon to examine allegations concerning the opposition of plantation employers to the carrying out of trade union activities on their private property, the Committee, while acknowledging fully that the plantations were private property, took the view that where workers live as well as work on the plantations, so that their union representatives can carry out their normal union activities among the workers only if they have access to the said plantations, it is of particular importance that access to the plantations should be granted unconditionally to the union representatives for the purpose of the lawful carrying out of their trade union activities, so long as they do not hinder the performance of the work during working hours and subject to the reservation that adequate precautions are taken for the protection of the property.
  181. 181 The same considerations led the Committee on Work on Plantations, in a resolution concerning industrial relations on plantations (Bandung, December 1950), to affirm the principle that the employers of plantation workers " should provide such unions with facilities for the conduct of their normal activities, including free office accommodation, freedom to hold meetings and freedom of entry ".
  182. 182 In these conditions the Committee, having regard to the importance which it attaches to the principles cited above, expresses the hope that the Government, in accordance with the intentions expressed in its communication of 2 November 1960, will take such steps as are necessary to endeavour to effect an arrangement between the employers and the complaining organisation with respect to the holding of trade union meetings. Before making its final recommendations to the Governing Body, however, the Committee requests the Government to furnish its observations on the matters raised in the latest communication from the Chiriqui Land Company Workers' Union.
• Allegations relating to Eviction from Trade Union Offices
  183. 183 These allegations were made by the Chiriqui Land Company Workers' Union in a letter dated 20 October 1960, to which they attach a copy of a complaint made to the General Inspector of Authorities concerning the events in question. These events are alleged by the complainants to have been the following. On Thursday, 13 October 1960, the Chief of Police at Puerto González is said to have ordered his subordinates to evict the union from a house which it had occupied for more than six years on the Laurel estate, and which had been provided by the Chiriqui Land Company for union offices and living quarters for the official in charge of them. The police threw out in the street all the books, papers and documents which they found in the office and removed the tables and benches. On the protest being made that these were the property of the union, a police officer replied-according to the complainants-that the Company wanted no union there. Moreover, continue the complainants, the Chief Political Officer in the Golfito area has declared to the Press that he will avert any strike in the banana zone even if to do so causes bloodshed, from which it is clear, they conclude, that the right to strike is seriously imperilled.
  184. 184 With its communication dated 8 February 1961 the Government forwarded a copy of a report made on the matter of the alleged eviction by the Chief Political Officer for the Golfito area to the Ministry of the Interior. The Government declares that the full legal procedure was followed, that the rules governing judicial procedure were respected and that the eviction order was put into effect indecent and courteous fashion. In the attached report it is stated that the Chiriqui Land Company authorised its agent to institute proceedings " with the Puerto González Police Office " with a view to evicting Mr. Gregorio Mayorga Correa (a leader of the FUTRA) from a house owned by the Company-it is stated that he had ignored earlier requests to vacate one-half of this building, No. 9104, located on the Laurel estate. The Company's agent therefore requested that eviction proceedings betaken pursuant to section 2 (1) and (2) of the Code of Civil Procedure to cause Mr. Gregorio Mayorga Correa to vacate one-half of the said building or, in the event of his refusal, to have him evicted by the police. The police served personal notice on 19 September 1960 and then, on 27 September, served written notice on the defendant to evacuate the premises within eight days or be evicted. The defendant submitted his arguments, which were rejected by the Chief of Police. On 13 October the Chief of Police evicted the defendant and put his chattels onto the street; the defendant took them away. The entire procedure, says the Government, was in accordance with existing administrative law provisions and, especially, section 691 (1) and (2) of the Code of Civil Procedure.
  185. 185 With reference to the statements alleged to have been made to the press by the Chief Political Officer, the Government declares that the allegations are too vague, omitting all references to the dates and names of the newspapers concerned, to permit of any observations being made beyond a statement that such officers do not themselves make decisions on matters of policy.
  186. 186 The allegation relates to the eviction of a trade union officer from premises occupied by him and apparently used as a trade union office where union documents were kept, these premises being the legal property of the Chiriqui Land Company. Irrespective of the question of legal ownership, under the procedure as described in the Government's reply, both the making and the application of eviction orders appear to be within the authority of the police without the necessity of obtaining any order from a court of law. This procedure would seem to be unusual. Before reaching final conclusions on this aspect of the case, the Committee has decided to request the Government to confirm whether, in fact, people may be evicted from property in such circumstances without the need for application to be made to a court of law.
• Allegations relating to Interference with Trade Union Meetings
  187. 187 It is also alleged-communication dated 22 August 1960 from the Chiriqui Land Company Workers' Union-that on 13 August 1960, when a general meeting of the union was to be held, the public authorities sent an unusually high number of police to the premises, so that many of the members were frightened away and the legal quorum for the meeting could not be attained. The meeting was adjourned until 21 August. Just prior to the adjourned meeting, it is alleged, police again were sent to the vicinity. Only about 100 union members dared to attend. During the meeting, it is alleged, the union's premises were under close police surveillance. The complainants declare that, despite the guarantee of the right of meeting contained in section 26 of the Constitution of Costa Rica, the Secretary of the Chief Political Officer in the Golfito area wished to prevent the meeting by force. They also accuse the authorities of attempting to spy at the meeting, in the hope of finding evidence to justify a dissolution of the union; thus, it is alleged, an inspector of the Ministry of Labour declared that he had been instructed to attend the meeting as an observer, but the union executive did not know of his presence at the beginning because he did not identify himself when the first session of the general meeting was held in the private premises of the union.
  188. 188 The Government replies by stating that on all occasions where there is an unusually large gathering of persons in connection with social, political or any other activities, it is customary to arrange for extra police to be present, to guarantee public order, but that, due to the reputation enjoyed in the country by the police force, their presence, far from intimidating those concerned, inspires security and confidence, quite apart from the guarantees conferred by the Constitution and legislation and made effective by the knowledge that institutions are respected in the country. With regard to the presence of a labour inspector at the union meeting, the Government observes that the labour inspectors are sufficiently well known to the workers, with whom they come into constant contact, for their presence at a meeting such as that in question to cause no surprise. The Government adds that in virtue of section 267 of the Labour Code, these officials are legally empowered to attend general meetings as observers.
  189. 189 In a previous case where the Secretary of Labor of the United States was accused of having intervened in trade union elections because he had solicited votes in a speech for a certain union, the Committee, being called upon to decide whether this intervention could have been considered by the workers concerned as a threat which might restrict their faculty to vote in secret for the union of their choice, took the view that the answer to this question depended on the conditions prevailing in the country concerned, the traditions followed, and the way in which civil rights and political freedom were protected there.
  190. 190 In the present case it would appear that the number of policemen provided to maintain public order in the vicinity of the place where the union meeting was being held is also a question of fact whose evaluation should be subject to similar considerations. According to the Government, it is its duty to maintain public order, and to do so calls for the presence of extra police whenever there is an especially large gathering of people in connection with activities of a public character. It would be very difficult to determine as a general rule, without knowing the exact circumstances, how many policemen would be sufficient to maintain order without impinging on the workers' right to meet freely.
  191. 191 In these circumstances the Committee recommends the Governing Body to draw the attention of the Government to the importance of having regard, when it is taking the necessary measures to fulfil its responsibility for the maintenance of public order, to the possibility of the exercise of trade union rights being endangered, and of taking adequate steps to ensure that its police officers observe the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Costa Rica.
  192. 192 As regards the presence of a public official at a meeting held on union premises-as alleged in the present case-in a previous case of a similar nature, where the Committee was called upon to pronounce its decision on an allegation relating to the presence of a government official during trade union elections, it took the view, as had the Committee of Experts on the Application of Conventions and Recommendations when examining the application in Cuba of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), that the presence of such an official might constitute an " interference " from which, in virtue of Article 3 of the Convention, the public authorities should refrain.
  193. 193 In these circumstances the Committee recommends the Governing Body:
       • (a) to draw the attention of the Government to the importance of having regard, when it is taking the necessary measures to fulfil its responsibility for the maintenance of public order, to the possibility of the exercise of trade union rights being endangered, and to the desirability of taking adequate steps to ensure that its police officers observe the provisions of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), ratified by Costa Rica;
       • (b) to draw the attention of the Government to the fact that when the authorities send their representatives to assemblies or general meetings of trade unions, held on union premises, or other private union meetings, the presence of such representatives may be considered as an interference, from which the public authorities should refrain in virtue of Article 3 of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).
  194. Allegations relating to the Detention of Trade Union Leaders
  194. 194 In its communication dated 22 August 1960 the Chiriqui Land Company Workers' Union alleges that on 24 July 1960, on the occasion of a union meeting on its own premises at Laurel, two union leaders, Mr. Alvaro Montero Vega and Mr. Juan Rafael Solis Barboza, were arrested and imprisoned by order of the Chief Political Officer for the Golfito area. In the annexes to the FUTRA's complaint dated 12 September 1960 it is stated that the arrest of these two persons, Vice-President and General Secretary of the FUTRA, followed closely after a visit by them to the President of the Republic to complain of antiunion persecution, on which occasion the President had promised to take appropriate action, this interview being reported in the Press next day. A further protest addressed to the President of the Republic is alleged to have been ignored. The complainants forward a cutting from the issue of La República dated 26 July 1960 reporting the fact of their arrest.
  195. 195 It is not true, replies the Government in its communication of 1 November 1960, that the leaders Juan Rafael Solis Barboza and Alvaro Montero Vega were arrested on 24 July; what happened was that they attempted to hold a meeting without satisfying the formalities laid down by the law, which resulted in a sanction, but not their arrest. In support of this affirmation it annexes a letter from the Minister of Labour to the Minister of the Interior, together with the latter's reply. The Minister of the Interior states in his reply that Messrs. Alvaro Montero Vega and Juan Rafael Solis Barboza were surprised while holding a meeting without having complied with the prior formalities required by the law, as a consequence of which, in accordance with the provisions of section 26 of the Political Constitution of Costa Rica, section 263 of the Labour Code and section 137 of the Police Code, sanctions were imposed on them by the Political Department of Golfito, but at no time were they detained.
  196. 196 In previous cases in which the Committee has been called upon to give a decision concerning complaints relating to infringements of the free exercise of the right to hold trade union meetings, the Committee has held that the right of trade unions to meet freely on their own premises, without the need for previous authorisation and in the absence of control by the public authorities, constitutes an essential element of freedom of association.
  197. 197 In these circumstances the Committee has decided, before making its final recommendations, to request the Government to provide further information as to the sanctions imposed and the legal formalities which it states were not complied with in respect of the union meeting which is said to have been held on union premises on 24 July 1960.
• Allegations relating to the Application for Registration Made by the FUTRA
  198. 198 The complaining organisation declares, in a communication dated 1 February 1961, that its establishment was decided upon at a congress of banana workers' unions held on 13 and 14 February 1960. Application for registration was made immediately to the Ministry of Labour. Between that time and November 1960, declare the complainants, the Ministry asked the Federation to make a number of changes in its draft rules, all of which the Federation accepted, but, in spite of this, the Ministry wrote to the Federation on 16 January 1961 stating that its application must stand over until the Ministry had made a survey of the different existing organisations of banana plantation workers. The complainants contend that this amounts to a refusal of registration. They cite the provisions of article 60 of the Constitution of Costa Rica and of sections 262, 274 and 288 of the Labour Code, and allege that they have been violated by the Ministry's failure to register their organisation.
  199. 199 This complaint has been transmitted to the Government, but the latter has not yet forwarded its observations thereon.
  200. 200 The Committee, therefore, has adjourned its examination of this aspect of the case pending the receipt of the Government's observations.