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DE RUEHBO #3127/01 2781554
ZNY CCCCC ZZH
R 051553Z OCT 09
FM AMEMBASSY BOGOTA
TO RUEHC/SECSTATE WASHDC 0218
INFO RHEHAAA/NATIONAL SECURITY COUNCIL WASHINGTON DC
RHMFISS/CDR USSOUTHCOM MIAMI FL
RHMFISS/DEPT OF JUSTICE WASHINGTON DC
RHMFISS/FBI WASHINGTON DC
RUCPDOC/DEPT OF COMMERCE WASHINGTON DC
RUEAIIA/CIA WASHINGTON DC
RUEHBR/AMEMBASSY BRASILIA 0063
RUEHC/DEPT OF LABOR WASHINGTON DC
RUEHCV/AMEMBASSY CARACAS 0062
RUEHGL/AMCONSUL GUAYAQUIL
RUEHPE/AMEMBASSY LIMA 0069
RUEHQT/AMEMBASSY QUITO
RUEKJCS/SECDEF WASHINGTON DC

C O N F I D E N T I A L BOGOTA 003127 

SIPDIS 

E.O. 12958: DECL: 2019/10/05 
TAGS: ELAB EAID ETRD KJUS PHUM PREL USTR CO
SUBJECT: COURTS CONSIDER TWO CONTROVERSIAL STRIKES AT DRUMMOND AND 
FENOCO 

REF: BOGOTA 1751 

CLASSIFIED BY: Marcos C. Mandojana, Deputy Political Counselor; 
REASON: 1.4(B), (D) 

SUMMARY 

------- 

¶1. (C) Two controversial court cases concerning strikes in the coal 
sector have reached the highest levels of the Colombian judicial 
system.  The National Mining and Energy Industry Workers' Union 
(SINTRAMIENERGETICA) initiated the first strike over work-safety 
issues at Drummond's La Loma coal mine, shutting down production 
for four days in March 2009.  The National Union of Workers in 
Metal Mechanics, Metallurgy, Iron, Steel, Electro-Metals, and 
Related Industries (SINTRAIME) convened the second strike on March 
24 at Northern Colombian Railways (FENOCO) -- 41% Drummond-owned -- 
due to the company's refusal to recognize the union.  SINTRAIME 
halted regional rail shipments of coal for 26 days, until local 
authorities forcibly reestablished rail service.  Together the two 
strikes cost Drummond, FENOCO, and regional governments millions in 
revenue and royalties.  The Supreme Court recently ruled that the 
SINTRAIME strike was illegal, and FENOCO fired 16 SINTRAIME leaders 
as a result.  Drummond has not fired anyone yet, but Drummond 
executives said they would fire 15-20 SINTRAMIENERGETICA leaders if 
the Supreme Court upholds a lower court ruling that the strike was 
illegal.  End Summary. 



STRIKE ONE: UNION CHARGES COMPANY NEGLIGENCE 

-------------------------------------------- 

¶2. (SBU) SINTRAMIENERGETICA leaders and Drummond executives 
confirmed that the March 22 death of DagobertoClavijoBarranco
precipitated the March 23 strike.  Clavijo died when he lost 
control of a tanker truck and it plunged off a 15-meter embankment. 
SINTRAMIENERGETICA XXXXXXXXXXXX characterized the accident as the latest in a series of deaths and injuries attributable to company negligence.  Clavijo, who had only been on the job a month, was hired via a contractor and never received adequate training in operating the vehicle, XXXXXXXXXXXX said. XXXXXXXXXXXX told us that nine mine workers and two dock workers have been killed, and 275 workers 
seriously injured, in the 13 years that Drummond has operated mines 
in the region. 



¶3. (SBU) Drummond Vice President of Corporate Affairs Jose Miguel 
Linares supplied PolOffs with Mr. Clavijo's training reports and a 
copy of the internal investigation into the accident.  Company 
records show that Clavijo received 106 hours of tanker truck 
operation and safety instruction in February 2009, and scored 
"adequate" to "excellent" on each module/exam.  The internal 
investigation concluded that neither "substandard conditions" nor 
"mechanical failure" caused the accident.  Linares told us that 
"operator error" was the likely cause.  He also said that the 
safety incidence rate -- an index measuring time lost due to safety 
incidents per 100 employees per year -- at Drummond's mines has 
been consistently lower than the U.S. average in surface mining 
activity (.33 compared to 1.33 in 2008). 



¶4. (SBU) An estimated 8,000 direct and indirect Drummond employees 
participated in the four-day strike, including 2,200 
SINTRAMIENERGETICA members.  XXXXXXXXXXXX for the 
United Federation of Workers in the Mining, Energy, Metallurgy, 
Chemical, and Similar Industries (FUNTRAENERGETICA) -- the umbrella 
confederation that includes SINTRAMIENERGETICA -- said that the 
strike ended when a majority of the workers decided to return to 
the mine, citing their financial imperative to work given hard 
economic times.  Drummond issued a statement on March 27 calling 
the strike illegal and thanking workers for breaking ranks with 
union leaders and returning to their jobs. 


COURT DECISION ON STRIKE LEGALITY PENDING 

----------------------------------------- 

¶5. (SBU) The matter was referred to the courts pursuant to Law 1210 
of 2008, which transferred authority to determine strike legality 
to the court system in line with ILO recommendations (reftel).  On 
July 21, the Administrative Tribunal of Valledupar, Cesar ruled 
that the strike was illegal because it had not taken place as part 
of a collective bargaining process in accordance with Substantive 
Work Code (CST) Article 444, nor had it been carried out using the 
proper procedures as defined by CST Article 445.  The legal window 
for initiating a strike is 2-10 days following a general assembly 
vote in favor of striking.  The SINTRAMIENERGETICA strike was 
extemporaneous, and did not adhere to the proper legal procedures. 
SINTRAMIENERGETICA has appealed the decision to the Supreme Court, 
where it is pending. 



¶6. (C) According to Colombian labor law (CST Article 450), a 
company may dismiss employees who participated in an illegal 
strike.  (NOTE: Colombian labor leaders advocate deletion or 
revision of Article 450, while private sector companies say it 
constitutes an important check and balance in company-labor 
relations.  End Note.)  In a September 23 press statement, Drummond 
said it had dismissed five union workers for illegal activities -- 
destruction of property and violence -- during the strike, and 
suspended an additional four as a step towards dismissal pending 
the Supreme Court ruling on strike legality (expected in two to 
three months).  Drummond's Linares told us the company may fire up 
to 20 of the most active organizers if the court rules in the 
company's favor. 



STRIKE TWO: UNION PROTESTS NON-RECOGNITION 

------------------------------------------ 

¶7. (SBU) Problems between SINTRAIME AND FENOCO began on November 4, 
2008 when 350 FENOCO workers joined the metals industry union and 
attempted to initiate collective bargaining.  The railway company 
refused to recognize SINTRAIME, largely on the basis that it had a 
preexisting collective bargaining agreement with another union. 
FENOCO argued that Law 904 of 1951 prohibited more than one 
convention from existing within the same company.  It also claimed 
that SINTRAIME, a metals industry union, had no legal right to 
organize workers in the transportation sector. 



¶8. (SBU) SINTRAIME appealed to the Ministry of Social Protection 
(MPS) to force FENOCO to negotiate, but the MPS ultimately took a 
legal position favorable to the company.  On March 16, the MPS 
issued a resolution declaring that FENOCO was not legally obligated 
to negotiate with SINTRAIME because the union did not meet the 
legal requirements to organize FENOCO workers.  On March 24, 
SINTRAIME declared the strike and occupied the rail lines, citing 
FENOCO's failure to fulfill its legal obligation to negotiate and 
"MPS passivity" in the matter, unions leaders said. 



¶9. (SBU) The strike lasted 26 days, until April 18 when the MPS 
ordered local authorities to dislodge the protestors and restore 
rail transportation on the grounds that the railway service 
provided by FENOCO under government concession was certified by the 
National Institute for Concessions (INCO) as an "essential public 
service."  Under Colombian law, such certification prohibits 
strikes by employees of contract companies.  The MPS is no longer 
the final arbiter of strike legality though (Law 1210 of 2008). 


Accordingly, the matter was referred to the Superior Tribunal of 
Santa Marta. 



FENOCO WINS ON APPEAL, FIRES 16 UNIONISTS 

----------------------------------------- 

¶10. (SBU) The Labor Chamber of the Superior Tribunal of Santa Marta 
ruled on April 23 that the company must recognize and negotiate 
with SINTRAIME in accordance with ILO Convention 154, regardless of 
whether it has a preexisting convention with another union.  The 
Tribunal also ruled that the company must recognize the union even 
if its mandate and statutes do not extend to the workers involved, 
since unions are free to revise and extend their articles of 
incorporation.  Finally, it ruled that transporting coal to port by 
rail did not constitute an "essential public service."  FENOCO 
appealed to the Supreme Court. 



¶11. (C) The Supreme Court upheld the lower court's ruling that 
multiple conventions may coexist within a single company.  It 
further ruled that transportation is an essential public service, 
citing Constitutional Court judgment C-450 of 1995, but said each 
case should be interpreted on an individual basis (the judgment was 
equivocal on whether transportation was essential in this specific 
case).  Finally, the Supreme Court ruled that the strike was 
illegal because SINTRAIME initiated it after the legal period set 
forth in CST Article 445.  FENOCO President and CEO Peter Burrowes
told us that the company fired 16 union leaders on the basis of the 
ruling.  SINTRAIME leaders interpreted the affair as a victory in 
terms of the revenue losses ($150 million) they were able to impose 
on Drummond and FENOCO. 
BROWNFIELD 

=======================CABLE ENDS============================