Notes on Methodology
The Secretariat study focuses mainly on the effectiveness of the law, and of administrative and judicial enforcement, as they have dealt with plant closings and threats of plant closing to prevent union organization in a previously unorganized workplace. The study also looks at the period following formation of a new union and, where an existing union is already present at the workplace, at closings or threats where the potential objective is to eliminate the union.
For the study to have comparative value, a mix of methods suited to each country’s labor system was required. Labor rights in relation to plant closings and threats of plant closing have varying and complex dimensions in the three NAALC countries. Plant closings themselves take various forms.4 The first obvious difference is one between total closings and partial closings of a plant or workplace. There is a further difference, under U.S. and Quebec labor law, between a total plant closing that is also a total closing of the entire business, and a total plant closing that affects only part of a business—closing one plant of a multi-plant enterprise, for example.5
Partial plant closings themselves can take several forms: closing a department, closing a shift, closing a product line or service function, relocating work, subcontracting work, converting employees to independent contractors, and so on. Cases before labor authorities reveal that any of these measures can be employed to deter union organization by workers. Of equal importance, employers can affect workers’ choice of union representation by making statements about plant closing, which may or may not amount to unlawful threats under U.S. and Canadian labor law. Such statements themselves can take different forms and arise in different contexts.
In all three NAALC countries the challenge for labor law enforcement is to determine the motivation for an employer’s decision to close a plant, and to decide whether it is motivated by legitimate business considerations or by anti-union bias. In the United States and Canada, issues of anti-union motivation can be litigated, while in Mexico the only issue is the legitimacy of the claimed business consideration for an actual closing. Evidence about other motivations is not relevant in Mexican labor law.
In legal proceedings on this issue, labor tribunals must take into account complex issues involving the burden of proof, the use of expert witnesses, the financial documents, and the other means of proving financial difficulty or economic necessity for a plant closing. In the United States and Canada, there is the added complexity of evidence about other motives that may demonstrate unlawful anti-union discrimination. In all three countries, experts in labor law and union organizing matters contributed to the research effort.
All outside researchers’ reports and supporting documentation are on file and available upon request from the Secretariat.
United States
U.S. research first examined all decisions by U.S. federal appeals courts in the period 1986–1993 in which the courts upheld, modified, or reversed the findings and orders of the NLRB in cases involving plant closings or threats of closing. This information was drawn from a preexisting database and methodology for typifying court decisions in unfair labor practice cases.6
The U.S. research also covered administrative data in plant closing cases, reviewing all NLRB decisions in cases involving plant closings and threats of plant closing from 1990–1995. The cases were found through an electronic search of all NLRB decisions using appropriate key words.7 Researchers also reviewed case files in two regional offices of the NLRB to sample how cases that do not reach the level of a published Board decision are handled by the regional offices. This review required a physical examination of thousands of case files in two regional offices recommended by the NLRB General Counsel’s office as generally reflective of national data.
The sample research in NLRB regional offices indicated that for every case involving a plant closing or a threat of plant closing that reaches the level of a published NLRB decision, 10 other cases are initiated in Board regional offices and disposed of through withdrawal, dismissal, or settlement, or by an administrative judge’s decision.
Survey research was undertaken to obtain information that cannot be gleaned from records of unfair labor practice charges filed with the NLRB. Unions that had recently attempted organizing campaigns were surveyed for data on the factors, including perceived plant closings and threats of plant closing, that influenced their decisions to withdraw election petitions or to proceed to elections, as well as factors affecting the results of elections and first-contract negotiations. 8
The Secretariat also sent letters to four major U.S. employer associations describing the study, attaching the ministerial agreement, provisions of the NAALC on Secretariat studies, and the terms of reference, and inviting any views and information relevant to the project.9
Canada
In Canada, researchers reviewed unfair labor practice cases involving plant closings and threats of plant closing before the administrative labor boards and commissioners of the 10 provinces and the federal government. Court decisions dealing with these issues were also examined, although the court decisions are few since labor board decisions are normally not accepted for appeal by the courts.10
An electronic search using appropriate key words, with follow-up review of texts, exposed the entire field of plant closing and threat cases in all Canadian jurisdictions since 1986. Each case could be examined in detail for its key characteristics, with extensive comparative information on a provincial basis. Important cases that arose in earlier years were also examined, especially for their importance as legal precedent.
Mexico
Mexican labor law requires employers to exhaust a complex legal proceeding before a state or federal Conciliation and Arbitration Board (CAB) to justify a plant closing and ensure that the reason for closing is among those permitted in the Federal Labor Law. The proceeding is called a "collective conflict of economic nature" in which the employer, the union (if there is one), and workers must appear. If a union were to resist a plant closing, the challenge would be raised in this proceeding.
No published records of the results of such proceedings are generally available in libraries or electronically. Case files and decisions are housed in the offices of the CABs. Secretariat researchers visited the offices of the federal CAB and two state CABs and examined thousands of case files in "collective conflict" cases brought before the CABs of selected jurisdictions.11 The collective conflict proceedings covered several other common types of labor grievances, which meant that extracting those on plant closings was a daunting task.
The review of CAB records revealed that the collective conflict mechanism described above is rarely invoked in plant closing cases. This led researchers to examine records of another means of resolving plant closing disputes: a "voluntary termination" clause of the law in which the critical issue is the provision of severance pay to workers as quickly as possible and under the most favorable terms.
For Part Four of this report on the labor market context, the Secretariat relied on reports from the three governments’ labor departments and statistical agencies, as well as a review of reports on plant closing issues produced by non-governmental groups. The Secretariat also used information from its own North American Labor Markets: A Comparative Profile, prepared for publication in May 1997.
SYSTEMATIC DIFFERENCES AMONG MEXICO, CANADA, AND THE UNITED STATES
Mexico does not normally have union organizing "campaigns" in which employers might seek to deter unionization in an unorganized workplace by closing or threatening to close the plant. In Canada there are several days, and in the United States several weeks, leading up to a union representation election. In a majority of Canadian provinces, however, no election is necessary. Workers obtain union certification by signing authorization cards.
This campaign period—prolonged in the United States and short in Canada—is the setting for most threats or decisions to close a plant to block unionization. In Mexico, the process of union formation through an election or other determination of majority status does not exist. Thus, Mexican administrative data offer little opportunity for examining plant closings or threats of plant closing as U.S. or Canadian case law does. This limited the applicability of the method of examining published labor board and court decisions in plant closing cases with respect to anti-union motivation, although important new data were obtained on how plant closing cases are resolved within the legal system.
While actual plant closings are unlawful in the Mexican system if they do not conform to specified legal requirements, threats to close a plant if workers form a union are not unlawful under Mexican law. Mexico does not employ an unfair labor practice concept, such as that used in Canada and the United States, which defines such threats as illegal. The protection against threats in the U.S. and Canadian systems is directly linked to the union election campaign process, which is not contemplated in Mexican labor law.
Mexican labor law targets employer actions, not employer statements. The relevant issue under Mexican law is whether the employer met one of the specified, permissible reasons for closing a plant. Since it is not unlawful, the phenomenon of the anti-union threat to close a plant, as it occurs in the United States or Canada, cannot be discerned in Mexican labor law records.
Some academic researchers have discussed a phenomenon of localized business cultures where there exists a widespread sentiment among workers that their employer would close a plant rather than accept a union. Some of these accounts point to maquiladora areas that are along the U.S.-Mexico border and that are said to be anti-union, while other areas are seen to have developed a culture of company unionism.12 Similar academic and journalistic accounts discuss an anti-union culture in areas of the southern United States, and in "Silicon Valley" and other high-technology manufacturing centers. 13 But examining a culture of anti-unionism in which workers have internalized a fear of plant closing would have to be undertaken in another study that would range far beyond the terms of reference of this report. Thus, no anecdotal accounts of anti-union behavior could be confirmed and incorporated into this study on the same basis as administrative and judicial records, or as a methodologically sound social science survey.