Rural workers and Labour Justice: the Estatuto do Trabalhador Rural in Brazil's cacao region, 1963-1973

Frank J. Luce

A Dissertation submitted to the Faculty of Graduate Studies in partial fulfillment of the requirements for the degree of Doctor of Philosophy

Graduate Programme in Law York University Toronto, Ontario

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1*1 Canada Rural Workers and Labour Justice: The Estatuto do Trabalhador Rural in Brazil's Cacao Region, 1963-1973

By Frank J. Luce

a dissertation submitted to the Faculty of Graduate Studies of York University in partial fulfillment of the requirements for the degree of

DOCTOR OF PHILOSOPHY

© 2009

Permission has been granted to: a) YORK UNIVERSITY LIBRARIES to lend or sell copies of this dissertation in paper, microform or electronic formats, and b) LIBRARY AND ARCHIVES CANADA to reproduce, lend, distribute, or sell copies of this dissertation anywhere in the world in microform, paper or electronic formats and to authorize or procure the reproduction, loan, distribution or sale of copies of this dissertation anywhere in the world in micro­ form, paper or electronic formats.

The author reserves other publication rights, and neither the dissertation nor extensive extracts from it may be printed or otherwise reproduced without the author's written permission. Abstract

This is an historical study of Brazil's system of labour courts known as Labour Justice (Justiga do Trabalho), in particular the relation between Labour Justice and rural workers. The focus is a case study of a local labour court {junta) in the Municipality of Ilheus, in the state of Bahia, a region dedicated to the monoculture of cacao. The case study analyses contested claims for labour rights filed by rural workers under the ETR {Estatuto do Trabalhador Rural or Rural Worker Statute), enacted in 1963 and repealed in 1973. An introductory chapter sets out an abbreviated history of labour law in Brazil, leading to the enactment of the CLT {Consolidacao das Lets do Trabalho or Consolidation of Labour Laws) in 1943, a labour law regime which incorporated rural workers through the enactment of the ETR in 1963 and which has remained in force under various political regimes up to the present (2009). The chapter then sets out my approach to the issues of legal and socio-legal theory relevant to the study of Labour Justice. Following this introduction, the dissertation is divided into three parts. The first part examines the campaign of the agrarian social movement for labour rights (1945- 1964), using the "interactional approach" recommended by Charles Tilly for the study of social movements. In the cacao region, rural workers joined the national campaign for labour rights, a demand which the central state accommodated by enacting the ETR on the eve of a military coup which was designed (in part) to crush the agrarian social movement. The regional campaign was relatively successful, despite the economic and political power of the region's growers known as the coroneis do cacau (cacao colonels) — made famous through the novels of Jorge Amada. The second part examines the system of Labour Justice, beginning with the construction of Labour Justice as a "juridical field" (Bourdieu). I then consider the approach of Labour Justice, first to disputes between unions and employers over issues of collective bargaining {dissidios

iv coletivos or collective disputes), then to claims by workers for individual labour rights (dissidios individuals or individual disputes). The third part is the case study of the local labour court (junta). After describing the social space which the junta occupied ~ including its relations with the local labour bar, the coronets and the rural unions -- the case study examines the procedural and substantive issues with which the presiding judge (Antonio Vieira) was confronted. A notable feature of the case study is that for most of the time period in question the political regime, despite being a military dictatorship, allowed Labour Justice to function as a relatively autonomous juridical field.

The case study concludes that although the Ilheus junta provided a coherent forum in which the labour rights of cacao workers were protected, the limitations of state law, and its limited recourse to effective means of coercion, allowed the cacao growers to comply with some provisions of the ETR and to resist others. I argue that the promise of labour rights was not fulfilled in the cacao region for three reasons: the change in the political regime brought about by the military coup, structural defects in the labour law regime, and the flawed performance of the region's rural unions.

Keywords: Brazil, labour, justice, Bahia, Ilheus, cacao

v Acknowledgments

My introduction to Brazil was as a delegate to the first World Social Forum in Porto Alegre in 2001, thanks to my former employer, the Canadian Auto Workers (CAW). Through the CAW I was introduced to Fernando Lopes — formerly of the Brazilian metalworkers confederation (CNM/CUT) and now of the International Metalworkers Federation (IMF) — who tutored me on Brazilian labour politics and facilitated a six month sabbatical at the Universidade Federal de Bahia (UFBA). My work at the CAW also connected me to an UFBA sociologist, Eduardo Paes Machado, who guided me through the complexities of Bahia's sociological make-up. My friendship with Fernando, Eduardo and their families is a cherished part of my Brazilian experience. The members of UFBA's Faculty of Philosophy and Social Sciences, in particular its graduate programme in history, were generous with their time and expertise. Antonio Guerreiro de Freitas advised me to look beyond the Reconcavo region, which led me to Ilheus. Antonio (Gino) Negro inspired my interest in the social history of the Fourth Republic and provided extensive insight, references, and friendship. My research project began to take shape when Fernando sparked my curiosity about Labour Justice. He introduced me to Judge Maria Adna Aguiar of the regional labour tribunal in Salvador, who in turn introduced me to her colleague Judge Vania Chaves. With the support of Judge Adna and Judge Vania, the doors of Labour Justice were opened to me, both at the regional tribunal and at the local junta in Ilheus. The next step was to locate the Labour Justice archive. The files generated by individual claims were kept locally. Lacking the material resources required to preserve their closed files, local juntas throughout Brazil had developed the practice of burning these files whenever a shortage of storage space developed. The files of the Ilheus junta were saved from burning by Janete Ruiz de Macedo, the director of CEDOC at the Universidade Estadual de Santa Cruz (UESC). When the junta announced that its archive would be burned, she created the Arquivo Juridico Joao Mangabeira (AJJM) to preserve

vi the files. At CEDOC-UESC, Professor Janete provided full access to the AJJM collection, and her successor, Andre Ribeiro, shared his work on regional history. Joao Cordeiro de Andrade worked with me on a daily basis and entrusted me with the results of his own research. We share a special bond because were born the same date in the same year. Joao introduced me to Alvaro Souza Neto who worked as my research assistant, advised me on the regional culture and became a good friend. Senildo Santana Paulo helped me settle in to daily life in Ilheus and imparted his experiences with local legal and political culture. Several other Brazilian colleagues gave generously of their time and expertise: Antonio Dias, who recounted his activist experience with the agrarian social movement; Rita Pereira and Jose Raimundo Fontes at the Universidade Estadual do Sul de Bahia (UESB) in Vitoria de Conquista; Joao Marcelo at the Universidade Estadual de Campinas (Unicamp). In addition, two historians from the U.S., Mary Ann Mahony and Clifford Welch, helped and advised at different intervals along the way. Osgoode Hall Law School provided generous administrative and financial assistance through its graduate programme. Osgoode has a wonderful team of librarians; in particular, the interlibrary loans librarian, Maureen Boyce, became an essential part of this project. The Osgoode members of my dissertation committee, Harry Arthurs, Judy Fudge and Eric Tucker, demonstrated the law school's depth in the field of labour law. Osgoode also proved to have tremendous breadth: Shin Imai and Joel Colon-Rios introduced me to law and social change in Latin America, Ruth Buchanan introduced me to current writings on law and development, Doug Hay shared his insights into legal history. In York's Tubman Institute, historian Jose Curto served on my dissertation committee and provided both research advice and contacts in Bahia and elsewhere. In the geography department, Carolyn King drew the map of Ilheus which appears at page ix. Harry Arthurs was a remarkable supervisor. Besides providing the breadth and depth of academic expertise and experience for which he is reknowned, he was incredibly responsive to my every need and unbelievably patient in correcting my drafts.

vn Some friends and colleagues provided comments on earlier drafts or on specific chapters, in particular Ian Anderson of the Ontario Labour Relations Board. Finally, I wish to thank the members of my examining committee for their courtesy and support: Doug Hay, Harry Arthurs, Jose Curto, Sarah Slinn, Carla Lipsig- Mumme and especially Mariana Mota Prado from the University of Toronto.

Dedicated to Esther

Vlll Ilheus Table of contents

Abstract iv Acknowledgments vi Mapofllheus ix

Chapter 1: Labour law and social movements 1

1.1 Introduction to Chapter 1 1 1.2 An abbreviated history of Brazilian labour law 5 1.3 The juridical field and the social field 16 1.4 The rule of law in Brazil 21 1.5 Forms of labour control and regimes of industrial legality 26 1.6 An interactional approach to contention 32 1.7 The argument 35 1.8 Chapter synopsis 35

Part I: The agrarian social movement 38

Chapter 2: The social network 39

2.1 Introduction to Chapter 2 39 2.2 The burguesia cacaueira 42 2.3 The coroneis do cacau 49 2.4 The legal culture 57 2.5 The mode of production 64 2.6 The forms of labour control 66 2.7 Concluding Chapter 2 80

Chapter 3: The political opportunity structure 83

3.1 Introduction to Chapter 3 83 3.2 A dependency approach 86 3.3 The New Republic 92 3.4 The Fourth Republic 96 3.5 The military regime 103 3.6 Concluding Chapter 3 110

Chapter 4 The campaign for labour rights 114

4.1 Introduction to Chapter 4 114 4.2 The identity debate: peasants or workers? 118 x 4.3 Organizational structure: peasants 125 4.4 Organizational structure: workers 128 4.5 The campaign and the Revolution of 1930 134 4.6 The campaign before the ETR 141 4.7 The campaign after the ETR 155 4.8 The campaign and dictatorship 162 4.9 Conclusion to Chapter 4 166

Part II: Labour Justice 169

Chapter 5: The juridical field 171

5.1 Introduction to Chapter 5 171 5.2 The Lei Eloi Chaves 172 5.3 The creation of the CNT 173 5.4 The Federal jurisdiction 173 5.5 Tri-partism 174 5.6 The Ministry of Labour 176 5.7 A specialized tribunal 178 5.8 The normative power 180 5.9 The right to strike 182 5.10 The 1946 constitution 184 5.11 An independent judiciary 185 5.12 Judicial independence during the dictatorship 188 5.13 Concluding Chapter 5 191

Chapter 6: The dissidio coletivo 195

6.1 Introduction to Chapter 6 195 6.2 The right to strike 197 6.3 The normative power 203 6.4 Assiduidade integral (perfect attendance) 207 6.5 Concluding Chapter 6 213

Chapter 7: The dissidio individual 216

7.1 Introduction to Chapter 7 216 7.2 The "ideal model" 219 7.3 Conciliation 223 7.4 Legal agents 225 7.5 As a form of contention 229 7.6 Conclusion to Chapter 7 234

xi Part III: The Vieira court 236

Chapter 8: The social space 239

8.1 Introduction to Chapter 8 239 8.2 The junta and the "ideal model" 240 8.3 The judge 253 8.4 The Ilheus bar 257 8.5 The junta and the coronets 262 8.6 The junta and the regional legal culture 268 8.7 Thejunta and the rural unions 273 8.8 Concluding Chapter 8 281 Chapter 9: Procedural fairness 284

9.1 Introduction to Chapter 9 284 9.2 Problems of service 285 9.3 The hearing process 295 9.4 Enforcement 304 9.5 Concluding Chapter 9 310

Chapter 10: Core labour rights 312

10.1 Introduction to Chapter 10 312 10.2 The centrality of the legal form 313 10.3 Just cause protection 323 10.4 The minimum wage 335 10.5 Conclusion to Chapter 10 344

Chapter 11: Conclusions 348

11.1 Introduction 348 11.2 Industrial legality and the legal form 349 11.3 Epilogue 356

xii Bibliography 358

Appendix A: The archive 381 Appendix B: Crop value 384 Appendix C: Individual labour rights 385 Appendix D: Regional minimum wage 386 Appendix E: Portuguese-English Lexicon 387 Appendix F: List of Acronyms 393 Appendix G: Note on Brazilian names 396

Xlll Chapter 1: Labour law and social movements

1.1 Introduction to Chapter 1

On March 13, 1964, President Joao Goulart committed his government to a programme of radical land reform.1 Two weeks later the Brazilian military launched a coup to remove President Goulart from office and replace his government with a military dictatorship. It is likely there was a causal relation between radical land reform and the dictatorship because the coup leaders acted immediately to halt an agrarian social movement which campaigned for "agrarian reform," including both a radical land reform and labour rights for rural workers. Labour rights were granted in 1963 but the prospect of a radical land reform proved to be intolerable.

The campaign for agrarian reform addressed the interests of both peasants and rural workers. The agrarian social movement deployed both of these identities and used a distinct organizational form for each: the Ligas Camponesas (Peasant Leagues) for peasants and rural unions for workers. Participants who self-identified as peasants were linked to the Ligas and land reform while those who self-identified as rural workers were linked to rural unions and labour rights. This dissertation is concerned with rural workers, rural unions and labour rights in the state of Bahia, in Brazil's Northeastern region, in a sub-region located in the southern part of Bahia; the sub-region was dedicated to the monoculture of cacao and is referred to as the cacao region. It consisted of 30

On March 13, President Goulart spoke at a public rally in Rio de Janeiro. For an account of this speech and the other events leading up to the day of the military coup, see Francisco Correa Weffort, "La crisis del populismo: Brasil, 1961-1964." Revista Mexicana de Sociologia 41.1 (1979): 129 2 Civilian rule was restored in 1985 and a new constitution was promulgated in 1988. 3 The military introduced a moderate rather than a radical land reform: Estatuto da Terra: Lei No. 4504 de 30 de Novembro de 1964. The land reform proposed by President Goulart on March 13 was not "radical" enough for leaders of the agrarian social movement who sought to redistribute the land and give ownership to the peasants. For example, Francisco Juliao dismissed Goulart's proposal as "uma reforma agraria...de beira de rodagem" (a roadside agrarian reform) because it affected only land within the transportation corridors contolled by the Federal government: Denis de Moraes, A Esquerda e o Golpe de 64 (Espaco e Tempo, Rio de Janeiro, 1989), page 228. 1 municipalities but the focus is on the Municipality of Ilheus, the region's commercial and political capital.

The Goulart government enacted the ETR (Estatuto do Trabalhador Rural or the Statute of the Rural Worker) in March 1963, granting labour rights to rural workers.4 The ETR identified and defined the status of "rural worker" {trabalhador rural) as the platform5 from which labour rights would be delivered; cacao workers suited this identity well because of the landholding system that the monoculture of cacao had produced. On the eve of the coup, Brazil's long-established labour court system, known as Labour Justice {Justiga do Trabalho), was expanded to include the establishment of a local labour junta (court) in Ilheus in which claims for labour rights could be adjudicated. The local junta survived the coup and continued to provide a forum for the claims of rural workers until the ETR was repealed in 1973 and replaced by legislation which was less protective of rural workers. This dissertation will assess the local junta's performance and impact during the lifespan of the ETR, through a case study of the contested claims which the region's rural workers brought against the growers known as the coronets do cacau (cacao colonels). The study uses a "case-in-context" approach to these contested claims; the context is provided by an analysis of the agrarian social movement in the cacao region and of the approach of Labour Justice (Justiga do Trabalho) to labour rights.8

The agrarian social movement was a form of rural protest which arose out of the political system which the 1964 coup overthrew; this political system was dominated by

4 Lei No. 4214 de 2 de Marco de 1963 5 For an example of the contemporary usage of the term "platform" see Brian A. Langille, "Labour Policy in Canada-New Platform. New Paradigm." Canadian Public Policy XXVII. 1 (2002): 133-42 6 The ETR was repealed and replaced by legislation which folded rural workers and rural unions into the general labour law known as the CLT. The new legislation is cited as Lei No. 5889 de 8 de Junho de 1973. 7 The use this study makes of a case-in-context approach is addressed in the prefatory remarks to Part III, before the beginning of Chapter 8. 8 Labour Justice was a branch of the judiciary and a system of labour courts. The system is explained in detail in Part III. 2 Getulio Vargas and the coup brought an end to "the Vargas era" (1930-1964).9 One of the characteristics of the Vargas era was that the state "granted" labour rights to Brazilian workers, with the exclusion of rural workers; the agrarian social movement in turn brought to rural workers the consciousness of labour rights. The coup leaders brought a halt to the agrarian social movement through coercion, but as a result of the new consciousness of rural workers the coup leaders were required to accommodate their labour rights.10

The theory that labour rights were "granted" by the state during the Vargas era ~ known as the "dddiva (gift) theory" — was an elite theory that is contested by alternative theories that acknowledge the agency of subaltern groups.11 The labour rights demanded by the agrarian social movement originated in a political project, movement or ideology known as trabalhismo (from the Portuguese word trabalho, meaning work or labour), and its adherents were known as trabalhistas. Labour rights and Labour Justice are best understood in the context of trabalhismo, and for this understanding we turn to the political history of the Vargas era and its three political regimes: the New Republic, the Estado Novo and the Fourth Republic.

9 This usage of "the Vargas era" is taken from Thomas E. Skidmore, Politics in Brazil. 1930-1964: an experiment in democracy (New York: Oxford University Press, 1967) page xv: I found it impossible to explain the political system in which Goulart operated without examining the origins of that system in the decade following the Revolution of 1930 and the process of redemocratization which brought an end to the Vargas dictatorship of 1937-45. 10 This is in reference to the pattern of rights creation suggested by Eugene Genovese in his study of slave agency and state law in the ante-bellum USA: [The slaves] saw that they had few rights at law and that these could easily be violated by the whites. But even one right, imperfectly defended, was enough to tell them that the pretensions of the master class could be resisted, before long, law or no law, they were adding a great many "customary rights" of their own and learning how to get them respected. Eugene D. Genovese, Roll. Jordan, roll : the world the slaves made. (New York: Vintage Books, 1976), page 30. 1' Charles Bergquist complained that Latin American scholars used a Thompsonian approach or an agency approach uncritically: "Latin American Labour History in Comparative Perspective: Notes on the Insidiousness of Cultural Imperialism," Labour/Le Travail 25 (1990): 189-98. Bergquist's argument was challenged by Jeremy Adelman: "Against Essentialism: Latin American Labour history in a Comparative Perspective. A Critique of Bergquist," Labour/Le Travail 27. Spring (1991): 175-84. 3 The Vargas era began with the Revolution of 1930 in which the military overthrew Brazil's Old Republic and installed Vargas as President. A new constitution was promulgated in 1934 to establish the New Republic, and Vargas remained as President. In 1937 — with the support of the military — Vargas overthrew the New Republic and installed the Estado Novo (1937-1945) with himself as dictator. A "redemocratization" process began in 1942 and it was during this process that Vargas launched his trabalhista project. In 1945, Vargas was ousted by the military and a new constitution was promulgated in 1946, creating the Fourth Republic (1946-1964). Vargas returned to power in 1951 as an elected trabalhista President and in August 1954 he committed suicide while still in office. The trabalhismo leadership then passed to Joao Goulart who was elected Vice-President in 1956 and again in 1960. In August 1961 the incumbent president resigned and Goulart took office as president pursuant to the constitution of the Fourth Republic, despite military opposition. On April 1, 1964, Goulart was overthrown in the coup and was succeeded by General Castelo Branco, the first in a series of military presidents.

Although the coup marked the end of the Vargas era and the end of the agrarian social movement, it did not mark the end of Labour Justice or labour rights. The Ilheus junta held its first hearing on March 30, 1964, the eve of the coup, and it continued to function unperturbed throughout the lifespan of the ETR (1963-1973) and beyond. The region's growers — the coroneis do cacau —resisted the junta and labour rights with the result that compliance with the ETR was not widespread in the cacao region, indicating that something more than the junta was required in order to effect compliance. The state had no pro-active system of enforcement and the ETR did not require a grower to recognize a union organization at the workplace level. This meant that although labour rights were enforced with respect to the claims brought to the junta, the coroneis

12 For a detailed account of Goulart's flight from office, see Helio Silva and Carneiro, Maria Cecilia Ribas, Historia da Republica Brasileira: A Fuga de Joao Goulart. 1962/1963 (Sao Paulo: Editora Tres Ltda, 1998). 4 continued to regulate relations of production on the "fazendas" (farms or plantations) where production took place.

The gap between enforcement in the juridical field ~ the junta — and compliance in the social field ~ the workplace ~ is the thread of analysis which guides my approach to labour rights. With respect to the cause of this gap, I will argue that compliance was not widespread in the cacao region for three reasons: a change in the political regime, structural defects in the labour law regime, and the flawed performance of the region's rural unions. I will argue that the llheus junta was not at fault; using the "rule of law" as the criterion, the junta's performance was coherent and effective, within the limitations of state law. State law was at fault to the extent that it tolerated the gap: in addition to the lack of a labour inspectorate, the labour rights granted did not include the right for the union to establish a workplace organization ~ referred to by its Portuguese acronym OLT {organizagao por local de trabalho') — in order to challenge the domination of the coronets on the fazenda scale. Although state law can be faulted for not providing an effective mechanism to narrow the gap, a contributing factor was the agency of the llheus rural union which abandoned its campaign for labour rights even prior to the coup.

This introductory chapter begins with an abbreviated history of Brazilian labour law, leading up to the enactment of the ETR in 1963. We then turn to a discussion of my approach to the study of labour rights, Labour Justice and the agrarian social movement. This discussion ends with a summary of my argument and is followed by a synopsis of the remaining chapters.

1.2 An abbreviated history of Brazilian labour law

The history of Brazilian labour law is dominated by the CLT (Consolidacao das Lets de Trabalho or Consolidation of Labour Laws), the labour law regime created by the

5 trabalhistas, within which the ETR was inserted. The trabalhistas used the CLT as the centerpiece of their dddiva theory: Vargas enacted the CLT in 1943 to grant labour rights to all workers in the formal economy, while rural workers were excluded from most (but not all) of these labour rights. The agrarian social movement's demand for labour rights was with reference to the labour rights granted by the CLT, which the ETR extended to rural workers in 1963. In the dddiva theory, Labour Justice was the state apparatus charged with the task of protecting labour rights; since Labour Justice was part and parcel of the CLT regime, rural workers also gained access to Labour Justice.

Although the enactment of the CLT was the focal point of the history of Brazilian labour law, the statute's origins in the Revolution of 1930 and its evolution during the Fourth Republic are significant episodes in this history. As its name suggests, the CLT was conceived as a consolidation rather than a codification.14 The significance of this distinction lies in the fact that the labour rights that the CLT gave were pre-existing gains of the class struggle, which were repackaged into the CLT and presented as a gift. The historical trajectory of labour rights was that they were introduced sector by sector according to the level of contention within each sector and then extended to the entire formal economy by the CLT.15 The incorporation of rural workers through the ETR was the culmination of this sectoral approach.

The CLT was enacted in 1943 and has been amended frequently since then, but the CLT regime continues to regulate labour relations in Brazil up to the present (2009). 14 The process of consolidation was described by Arnold Sussekind in a series of interviews: Magda Barros Biavaschi, "Entrevista Com Ministro Arnaldo Sussekind, 20 De Outubro De 2004 e 27 De Junho De 2002"). Available online at http://iframe.trt4.jus.br/portaltrt/htm/memorial/menu/depoimentos/Entrevista%20%20com%20Arnaldo%20 Sussekind%20-%2020%20de%20outubro%20de%202004.pdf (visited 20 July 2009); Angela Maria de Castro Gomes, Elina Goncalves da Fonte Pessanha, and Regina Lucia de Moraes Morel, Arnaldo Sussekind : um construtor do Direito do Trabalho (Rio de Janeiro: Renovar, 2004). The sector by sector construction of the CLT regime during the New Republic is examined by Judge Biavaschi in Magda Barros Biavaschi, "O Direito do Trabalho no Brasil- 1930/1942: a construcao do sujeito de direitos trabalhistas," (unpublished doctoral dissertation, Universidade Estadual de Campinas- UNICAMP, 2005). 6 When the ETR was enacted in 1963, most rural workers were only two or three generations removed from slavery and the extension of labour rights to rural workers was a radical intrusion by the state into what was previously a private domain. Unlike the former Spanish empire which divided into separate countries at independence, each of which abolished slavery in the first half of the 19th century, Brazil maintained the centralized power structure of the former colonial — now Imperial — state and preserved the Portuguese system of "colonial slavery."16 When slavery was finally abolished in 1888, the Emperor was deposed a year later and the Old Republic (1889-1930) was born. The rural oligarchs rallied to the Republican cause and used the Old Republic as a political regime which preserved their estates (the latifundia) and their system of oligarchical rule. The coronets do cacau were a regional expression of this ruling oligarchy.

The campaign of the agrarian social movement for labour rights and land reform can be traced back to 1850 when a linkage between labour policy and land policy was first established; that year the Imperial state enacted Brazil's first land law and at the same time took measures to abolish the trans-Atlantic slave trade. The purpose of the land law was to ensure that rural workers would not easily acquire a private plot of land instead of working within the plantation system; its effect was to create a class of latifundidrios who claimed vast tracts of idle land while at the same time dedicating only part of their land to the production of commodities for the international market. The demand for a radical land reform was directed against the latifundidrios, to redistribute their idle land to the landless peasants and/or to transfer ownership of cultivated tracts to the tiller. There were latifundidrios in the coastal portion of the cacao region, but there

16 This usage of the expression "colonial slavery" is taken from Jacob Gorender, O escravismo colonial (Sao Paulo: Editora Atica, 1978) 7 was also an abundance of unclaimed land in the interior, to which some of the former 1 7 slaves from Bahia's Reconcavo region were attracted in the post-abolition era.

Although colonial slavery was the dominant mode of production in Imperial Brazil, the state experimented with other forms of labour control for rural workers. The first of these experiments was a series of statutes which purported to regulate the labour of European immigrants through the locagdo de servicos contract which was created in 183018 and then abandoned in 189019 because its reliance on penal sanctions was deemed to be inappropriate. The second, non-state experiment was initiated by coffee growers in the state of Sao Paulo who developed the colono contract under which European (and

The migration of former slaves into the region is considered by Mahony in Mary Ann Mahony, "Afro- Brazilians, Land Reform, and the Question of Social Mobility in Southern Bahia, 1880-1920," in Hendrik Kraay, Afro-Brazilian culture and politics : Bahia, 1790s to 1990s (Armonk, N.Y.: M.E. Sharpe, 1998). For a more general study of migration patters after abolition in Bahia, see Silvio Humberto dos Passos Cunha, "Um Retrato Fiel da Bahia: Sociedade-Racismo-Economia na Transicao para o Trabalho Livre no Reconcavo Acucareiro, 1871-1902," (unpublished doctoral dissertation, Universidade Estadual de Campinas-UNICAMP, 2004); and Walter Filho Fraga, Encruzilhadas da Libertade: Historia s de Escravos e Libertos na Bahia (1870-1910) (Campinas, Sao Paulo, Brasil: UNICAMP, 2006). 18 There were three statutes in the 19th century which regulated locacao de servico contracts: Lei de 13 de Setembro de 1830; Lei de 11 de Outubro de 1837; Decreto No. 2827 de 15 de Marco de 1879. In addition, the Commercial Code of 1850 used the phrase locacao de servico to refer to a contract for services: Lei No. 556 de 25 de Junho de 1850, Article 226. For a study of the 1879 statute see Maria Lucia Lamounier, Da escravidao ao trabalho livre : a lei de locacao de servicos de 1879 (Campinas: Papirus, 1988). Jacob Gorender critiques this study in A Escravidao Rehabilitada (Sao Paulo: Editora Atica S.A, 1991). 19 Decreto No. 213 de 22 de Fevereiro de 1890 20 Although the locacao de servico statutes were not consistently enforced, they were nonetheless an expression of state policy. With respect to master and servant law that spread the use of penal sanctions throughout the British empire, Hay and Craven wrote: The formal policy of the law is in the statutes, and so too is much of the history of the law and indeed of the empire as a legal and political entity. Douglas Hay and Paul Craven, Masters, servants, and magistrates in Britain and the Empire. 1562-1955 (Chapel Hill: University of North Carolina Press, 2004), page 11. At the same time we should acknowledge that statutes can bring, and often do bring, an unexpected result: Efforts to regulate behaviour with formal legal institutions can often have perverse effects, ranging from simple non-compliance to, on occasion, entirely unexpected results. David Szablowski, Transnational law and local struggles : mining, communities, and the World Bank (Oxford; Portland, Or.: Hart Pub., 2007), page 11 8 later Japanese) immigrants were used to plant and nurture the coffee crop. The final experiment, particularly after 1871, was the attempt to manage the transition from slavery to free labour by statutory measures which introduced other forms of bondage under one

00 pretext or another, until slavery was formally abolished in 1888.

While the Imperial state was highly centralized, the constitution of the Old Republic (1891-1930) was federalist. In the Old Republic, the central state retained jurisdiction over civil, commercial and criminal law — all of which touched on employment relations ~ while social legislation was within the jurisdiction of the component states until it was transferred back to the central state (1926). Employment relations were considered to be contractual or a matter of civil law,23 and when Brazil enacted its first Civil Code in 1916, the 19th century phrase "locagao de servicos" was applied generally to the employment contract.24 Freedom of contract was the rule until Brazil joined the ILO (International Labour Organization) in 1919 and the union movement began to agitate for a response to "the social question," including labour rights such as the eight hour day. In rural Brazil, government at all levels remained relatively absent from the field of regulating relations of production after slavery was formally

For the history of attempts to introduce European colonos in the Sao Paulo coffee plantations, see Verena Stolcke and Michael M. Hall, "Introduction of Free Labour on Sao Paulo Coffee Plantations," in T.J. Byres, ed. Sharecropping and Sharecroppers. (Totowa, N.J.: F. Cass, 1983); and Stanley J. Stein, Vassouras. a Brazilian coffee county. 1850-1900 (Cambridge: Harvard University Press, 1957). 22 On file with the author is an unpublished study of the legal aspects of the process which led to abolition in 1888: Frank Luce, "Labour, property and law: why Rui Barbosa burned the slave archives" (unpublished, Osgoode Hall Law School, 2005) 23 Brazilian civil law was based on the Ordenacoes Filipinas, a modified Roman law regime which was adopted in Portugal in 1603, transplanted in Brazil, and remained in effect until 1917. 24 The Civil Code was enacted as Lei No. 3071 de 1 de Janeiro de 1916 and came into effect a year later on January 1, 1917. The first Codigo de Processo Civil (Code of Civil Procedure) was enacted during the Estado Novo in 1939: Decreto-Lei No. 1.608 de 18 de Setembro de 1939. It was replaced by a new code in 1973: Lei No. 5.869 de 11.1.1973 (unless otherwise noted, all references in this dissertation are to the 1939 code). 25 The "social question" was a euphemism used throughout Latin America to refer to labour agitation and social unrest as well as the poverty and social exclusion which was the cause. The eight hour day was a demand of the labour movement in Brazil and world wide which was viewed as a matter of social policy requiring social legislation. Prior to the Revolution of 1930, the "social question" was deemed by state actors to be a question for the police ("A questao social e uma questao da policia"). 9 abolished, except for the state of Sao Paulo which regulated the colono relation. In Bahia the state government left rural workers to their own devices.26

We now turn to the Revolution of 1930 and its response to the social question. The characterization of the revolution's labour policy as "corporatist" is not controversial, as we will see in later chapters, although the ideological origins of this corporatism remain open to debate.27 Two corporatist union statutes were enacted during the New Republic (1930-1937) and a third was enacted in 1939 by the Estado Novo (1937-1945), using the same corporatist form, 28 and each time the unions were forced to re-apply for recognition. The statute that was eventually consolidated into the CLT was the 1939 statute, that is, the corporatist vision of the Estado Novo.

Arthurs suggested that this pattern was characteristic of labour law: The state and its legal system have had an ambivalent, abstracted, even perverse, involvement with the employment relationship. Sometimes the state has followed a conscious policy of absenting itself from the labour market; sometimes it has been highly interventionist. Harry Arthurs, "Labour Law Without the State," University of Toronto Law Journal (1996):!. page 1. 27 Tamara Lothian and Stan Gacek carried out a vigorous debate over the relative merits of Brazil's "corporatist" labour system and the "contractualist" system of the USA. Reading this debate provides a good comparative understanding of the differences between the systems: Tamara Lothian, "The Political Consequences of Labor Law Regimes: The Contractualist and Corporatist Models Compared," Cardozo Law Review (1985-1986): 1001; Stanley A. Gacek, "Revisiting the Corporatist and Contractualist Models of Labor Law regimes: a Review of the Brazilian and American Systems," Cardozo Law Review 16 (1994- 1995): 21; Tamara Lothian, "Reinventing Labor Law: A Rejoinder," Cardozo Law Review 16 (1995): 1749. The Minister responsible for the first corporatist labour law was influenced by the positivism of Julio de Castilhas who was a follower of Auguste Comte: see Lindolfo Collor and Mario de Almeida Lima, Origens da legislacao trabalhista brasileira : exposicoes de motivos. (Porto Alegre, RS: Fundacao Paulo do Couto e Silva, 1990). This should not be confused with the legal positivism of the authors of the CLT in 1943 who were assigned to write a consolidation and ended up with a text that more resembled a code because they were concerned about the source of the legal obligations which the CLT purported to regulate. Legal positivists have in common this concern for the sources of state law rather than its merits: John Gardner, "Legal Positivism: 51/2 Myths" (2001) 46 Am.J. Juris. 199, page 199. For a the debate over the origins of Brazil's corporatist labour law, see Evaristo de Moraes Filho, O problema do sindicato unico no Brasil: seus fundamentos sociologicos (Sao Paulo: Alfa-Omega, 1978); Biavaschi, op. cit., fn 15; and Michael M. Hall, "Corporativismo e Fascismo,", in Angela Maria Carneiro Araujo, ed. Do Corporativismo ao Neoliberalismo: Estado e trabalhadores no Brasil e na Inglaterra (Sao Paulo: Boitempo Editorial, 2002). 28 The three statutes are cited a follows: Decreto No. 19.770 de 19 de Marco de 1931; Decreto No. 24.694 de 12 de Julho de 1934; Decreto-Lei No. 1402 de 5 de Julho de 1939. 10 We have seen that the enactment of the CLT was the centerpiece of the trabalhista political project. The project was launched in 1942 when Brazil joined the allied cause against Germany; a return to electoral politics was anticipated for the end of the war so the trabalhistas planned an electoral strategy to keep Vargas in office. The origins of the CLT has been characterized variously as fascist29, a political fraud30 and populist but the trabalhista project is best understood as an implicit pact between the elite forces which supported Vargas — the trabalhista elite — on one side and the leadership of the official unions (unions recognized by the Ministry of Labour) on the other. The "pact" concept captures the compromises that were made by both sides. In this analysis, the trabalhista union leadership consolidated labour rights throughout the formal economy while subordinating union autonomy to state control. For their part the trabalhista elite that controlled the state agreed to protect labour rights in exchange for the political support of the urban working class which the trabalhista union leaders were expected to deliver. In effect the trabalhistas offered the CLT and its corporatist union structure as the pathway to citizenship for the subaltern classes, and labour rights were

Judge Biavaschi devoted her study to refuting the purported fascist origins of the CLT: Biavasschi, op. cit, fn 15, and see the works cited in fn 27. 30 The political fraud argument was suggested by John French, although his study presents a more sophisticated analysis: John D. French, Drowning in laws : labor law and Brazilian political culture (Chapel Hill: University of North Carolina Press, 2004); John D. French and Paulo Roberto Ribeiro Fontes, Afogados em leis : a CLT e a cultura politica dos trabalhadores brasileiros. (Sao Paulo, SP, Brasil: Fundacao Perseu Abramo, 2001); John D. French, The Brazilian workers' ABC : class conflict and alliances in modern Sao Paulo (Chapel Hill: University of North Carolina Press, 1992). 31 Francisco Weffort is the grandfather of the populist position which has now fallen into disfavour: Francisco Correa Weffort, O populismo na politica brasileira (Rio de Janeiro: Paz e Terra, 1978): Francisco Correa Weffort, Los origenes del sindicalismo populista en Brasil: la coyuntura de la posguerra (Lima: Taller de Estudios Politicos, Programa Academico de CCSS, Universidad Catolica del Peru, 1975). 32 Gomes, Angela Maria de Castro, A invencao do trabalhismo (Sao Paulo: Vertice; Rio de Janeiro: IUPERJ, 1988). This interpretation has been used to refute the populist argument: see Adriano Duarte and Paulo Fontes, ""O populismo visto da periferia: adhemarismo e janismo nos bairros da Mooca e Sao Miguel Paulista"," Cad. AEL 11.20/21 (2004), at page 112 ff. This entire issue of Cadernos AEL is dedicated to the debate over populism and trabalhismo. I thank Antonio Negro for this reference. See also Marcelo Badaro Mattos, Novos e velhos sindicalismos: Rio de Janeiro, (1955/1988) (Rio de Janeiro, RJ: Vicio de Leitura, 1998) page 58 ff for a critique of Weffort's approach. The "pact" concept itself was disputed by Joel Wolfe: "The Faustian Bargain Not made: Getulio Vargas and Brazil's Industrial Workers, 1930-1945." Luso-Brazilian Review 31.2. Getulio Vargas and His Legacy (1994): 77-95.

11 presented as a gift (dddiva) from the state which trabalhista politicians undertook to maintain as long as they maintained control of state power.

The pact, and the dddiva theory that legitimizes it, helps explain why rural workers were incorporated into the pact in 1963 through the enactment of the ETR and why the military continued to recognize their labour rights after displacing the democratic government that had introduced them shortly before its fall. However, another implicit "pact" ~ this one between Vargas and the oligarchies that dominated rural Brazil — explains why rural workers were originally excluded from the CLT regime: while the rural oligarchies gave Vargas a free hand to develop Brazil's industrial economy, Vargas maintained the oligarchs' control over agricultural production for the export market, the country's main source of foreign exchange. In a strategy of import-substitution industrialization, Vargas used the CLT to maintain "labour peace", while the rural oligarchs relied on alternative forms of labour control.

The political project of trabalhismo was advanced through the formation of two political parties, each representing a different segment of Vargas's political base. The PSD (Partido Social Democrdtico or Social Democratic Party) was formed by officials who worked throughout the country in the various state apparatuses that Vargas controlled. The PTB {Partido Trabalhista Brasileiro or Brazilian Labour Party) was formed by officials from the Ministry of Labour who worked in the federal capital and the regional offices — known as a DRT (Delegagao Regional do Trabalho or Regional Labour Delegation) — located in the state capitals. Ministry officials were instructed to train a new generation of union leaders who would take the trabalhista message to their membership and Ministry officials were sent to establish party branches throughout the country. The political project went off course during the Fourth Republic when the movement began to follow two separate paths, although the PSD and the PTB were able to control the agenda of government throughout the Fourth Republic when they united in common cause.

12 The ideology of trabalhismo provided a pro-capitalist alternative to communism, fascism, and the theory of "modernization." Labour rights were a central tenet in the trabalhismo world view, representing the legitimate aspiration of the working class. During the Fourth Republic, the main ideological rival to trabalhismo within the working class was communism, an ideology which valued labour rights as a short term goal but sought in the long term to replace capitalism, making socialism rather than labour rights the legitimate aspiration of the working class. Under the leadership of Luis Carlos Prestes, the political project of the PCB34 during the Fourth Republic was more pragmatic than revolutionary, and the PCB eventually formed an alliance with the PTB within the union movement to advance their common goal of labour and political rights for the working class.35

The PTB-PCB alliance reflected the divergence within the trabalhismo movement between its elite and its union activists. The dddiva theory was used as an instrument for elite trabalhista politicians who had a populist agenda, but many union activists remained focused more explicitly on workplace issues. Formal labour rights may have been

Modernization was the neo-liberal or free market model that the U.S. proposed for Brazil in the post-war period; it is discussed in Chapter 3. Antonio Negro argued that trabalhismo was advanced as an alternative to the anti-capitalist ideologies which were prevalent during the Fourth Republic: Antonio Luigi Negro, "A dinamica da luta grevista da expressao politica dos metalurgicos do ABC", (unpublished paper presented to the LASA conference, Montreal, 2007). 34 This acronym refers to Brazil's original Communist Party, founded in 1922 and led by Luis Carlos Prestes since 1945. The party was originally called the Partido Communista do Brasil but changed its name to the Partido Communista Brasileiro in 1962 to avoid legal complications over the party's prior affiliation with the Communist International. Another communist party was formed in 1962 as a result of the Sino- Soviet split, and this party took on the name Partido Communista do Brasil. To avoid confusion with the PCB, this new party is known as the PC do B. 35 This alliance was consolidated after 1957: see Antonio Luigi Negro, Linhas de montagem : o industrialismo nacional-desenvolvimentista e a sindicalizacao dos trabalhadores 0945-1978) (Sao Paulo SP: FAPESP : Boitempo Editorial, 2004). For the history of the PTB and its relation with the PCB on the left and the PSD on the right, see Lucilia de Almeida Neves Delgado PTB : do getulismo ao reformismo (1945-1964). (Sao Paulo, SP: Marco Zero, 1989). 36 Weffort's approach to populism included a critique of the union movement which he argued was also populist. This theory of "populist unionism" was rejected by Negro and others who relied on primary sources: Research in the secret files of the police and the industrialists provided a unifying theme for the period 1945-1968[sic]: we detected a trabalhista unionism profoundly influenced by the PCB, or 13 granted by statute, they argued, but actual-existing labour rights had to be won through contention on the workplace scale. They also agreed that political contention was necessary and argued that the union movement should pursue an autonomous political agenda. The CLT regime restricted workplace contention because employers could refuse to recognize a union OLT (workplace organization) and it restricted political contention because the Ministry of Labour had various control mechanisms at its disposal. For Oliver Dinius, the "fundamental question" in the history of the CLT was the following:

Was the CLT above all a tool of labour control, thus stymieing workers' defence of their interests and fuller participation in democratic politics, or did it offer workers a pathway to more effective challenges of capitalist power in industrial relations and beyond?

During the Fourth Republic (1945-1964), union leaders generally involved themselves in this fundamental question in various ways and became identified as "pelegos " , "democrats" or "nationalists". From the perspective of the agrarian social movement, the nationalists were allies in the formation of a worker-peasant alliance that began to take shape in the closing years of the Fourth Republic.40

The nationalists generally supported the PTB-PCB alliance and contended for union autonomy within the official union structure by forming parallel organizations

by the PTB-PCB alliance. There was energy, will, identity, subtlety and strategies coming out of the workplaces. And so the theory of populist unionism may be rejected. Antonio Luigi Negro, Linhas. fn 35, page 305. The original in Portuguese reads: A pesquisa nos guardados da policia e dos industrials forneceu um eixo para o periodo 1945-1968: divisamos um sindicalismo trabalhista profundamente influenciado pelo PCB, ou pela alianca PTB-PCB. Havia energia, vontade, identidade, sutilezas e estrategias- a partir dos locais de trabalho. Pudemos assim deixar de lado a teoria do sindicalismo populista. 37 Oliver Dinius, "Brazilian Labor Courts and Industrial Relations Under State Capitalism", (unpublished manuscript, on file, with thanks to the author for this copy), page 8. 38 Pelego was a pejorative term referring to union leaders who acted as agents of the Ministry of Labour. The pelegos were generally content to manage their own careers within the official union structure or within the state apparatus to which they aspired to be appointed. 39 The democrats were characteristically anti-communist and often sympathized with the U.S. argument that favoured "contractualism" or "free collective bargaining". 40 For the extent to which this alliance took shape in Pernambuco, see Florencia E. Mallon, "Peasants and Rural Laborers in Pernambuco, 1955-1964," Latin American Perspectives 5.4, (1978): 49-70. 14 {organizagoes paralelas) outside the CLT structure, including a central labour body and an OLT (workplace organization). Nationalist union leaders were often active politically within the PTB, the PCB or a smaller party such as the PSB {Partido Socialista Brasileiro or Brazilian Socialist Party).41 These parties in turn joined a broader coalition of political forces known as "developmental nationalism," whose political programme, known as the reformas bdsicas (basic reforms), included agrarian reform. Developmental nationalism was the political force behind the enactment of the ETR in March 1963 and it was the political force which made the commitment to implement a radical land reform, two weeks before the military coup.

The origins of the agrarian social movement and its campaign for labour rights are discussed in detail in Part I of this dissertation. For present purposes it is sufficient to note that it united the rural unions and the Ligas Camponesas in a campaign for agrarian reform, that is, land reform for peasants and labour rights for rural workers. Congress accommodated the demand for labour rights by enacting the ETR. To facilitate enforcement of the ETR in the cacao region, Goulart's trabalhista government established a labour junta in Ilheus —the Junta de Conciliagao e Julgamento de Ilheus. Judge Antonio Vieira presided over this junta from its inception in March 1964 until 1972 when he was promoted to another post in Salvador, the state capital. Judge Vieira was instrumental in establishing the presence of Labour Justice in Ilheus and he figures prominently in the case study which is contained in Part III of this dissertation. The case study is concerned with the Ilheus junta during the lifespan of the ETR (1963 to 1973), and I refer to the junta during this time period as "the Vieira court".

41 The PSB name was used by various political parties, but the PSB in question was founded in the post-war era and provided an electoral home for many PCB members during the Fourth Republic after the PCB was banned in 1947. Francisco Juliao from the Ligas Camponesas was elected as a PSB member. 15 1.3 The juridical field and the social field

This brief account of the history of Brazilian labour law raises a number of significant issues of legal and socio-legal theory, beginning with the issue of the gap between enforcement in the juridical field and compliance in the social field, which is discussed in this section.42

The concept of the juridical field was used by Pierre Bourdieu to identify a social space which was specifically dedicated to judicial interpretation, inquiry and debate, with the two central characteristics that this space was relatively autonomous from political power and that it was regulated by its own rationality and rules of conduct. The "relative autonomy" that Bourdieu ascribed to the juridical field evolved historically in liberal states in which judicial independence was a characteristic of the rule of law. Judicial independence is a relative concept, and in Brazilian history the extent of independence accorded the judiciary depended on the nature of the political regime.44 In

Houtzager took a similar approach in examining the relation between the juridical field and the "movement field" with respect to Brazil's movement of the landless: Peter Houtzager, "The Movement of the Landless (MST), juridical field, and legal change in Brazil," in Boaventura de Sousa Santos and Cesar A. Rodriguez Garavito, Law and globalization from below : towards a cosmopolitan legality (Cambridge, UK ; New York: Cambridge University Press, 2005), page 221 43 Pierre Bourdieu provided the following definition of the juridical field: ... a social space organized around the conversion of direct conflict between directly concerned parties into judicially regulated debate between professionals acting by proxy. It is also the space in which such debate functions. All references to Bourdieu in this chapter are taken from Pierre Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field," Hastings Law Journal 38 (1986-1987): 805-53. The original article in French appears at Pierre Bourdieu, "La force du droit," Actes de la recherche en sciences sociales 64.1 (1986). 44 According to Keith Rosenn: ...formal constitutional guarantees of judicial independence have been largely ineffective in Latin America because of certain structural features of Latin American politics and legal institutions... [j]udicial independence is a relative rather than absolute concept. Keith S. Rosenn, "The Protection of Judicial Independence in Latin America," Miami Inter-American Law Review 1.19 (1987-1988). Rosenn was an early participant in the law and development movement in Brazil, a movement which James Gardner described as "legal imperialism": James A. Gardner, Legal 16 my approach I use the concept of a juridical field as Bourdieu intended, except that, while Bourdieu imagined a unitary field, in my usage Labour Justice is one of many juridical fields, and the Vieira court is a smaller juridical field within the larger field occupied by Labour Justice.

This pluralist notion ~ that there are many juridical fields -- applies similarly in the social field in the sense that there are many distinct spaces in which social relations, including relations of production, take place. My approach is that of Sally Falk Moore who delineated a social field as a unit of measure ordered by a "coherent and complex normative system" of rules, customs and conventions. 45 This notion migrated from anthropology into socio-legal theory when Harry Arthurs applied the notion of a "legal field" to an individual workplace where power relations and relations of production determine actual-existing labour law. In the theory of legal pluralism, interlegality describes the phenomenon of intertwining or overlapping legal orders — both state law and non-state law — that regulate a legal field, and Arthurs used a legal pluralism

imperialism: American lawyers and foreign aid in Latin America (Madison, Wis.: University of Wisconsin Press, 1980). 45 Sally Falk Moore, " Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study" Law & Society Review 7 (1973): 719. 46 According to Arthurs: ...each workplace is its own legal system, different from any other, and different as well from the legal system of the state. Harry Arthurs, "Understanding Labour Law: The Debate over "Industrial Pluralism"," Current Legal Problems (1985): 83, page 89; and see Arthurs, "Labour Law Without the State," fn 26, page 45.

47 Boaventura de Souza Santos applied the phenomenon of interlegality to labour law: In order to operate adequately, a given labour law, for instance, must not only negate the existence of other normative orders or informal laws (such as factory codes, production of customary laws, etc.) that might interfere in its realm of application, but also revoke all the state labour laws that have previously regulated the same labour relations. This is, as we well know, a double misreading of reality. On the one hand, as legal pluralist research tells us, other normative orders do operate and are effective in the same legal territory. On the other hand, since law and society are mutually constitutive, the previous labour laws, once revoked, nevertheless leave their imprint on the labour relations they used to regulate. Though revoked, they remain present in the memories of things and people. Legal revocation is not social eradication. Boaventura de Sousa Santos, "Law: A Map of Misreading. Toward a Postmodern Conception of Law," Journal of Law and Society 14.3 (1987): 279-302, page 281-282 17 approach to describe actual-existing labour law as the intermingling of state law and non- state law in a legal field.

For purposes of this study, the distinction between state law and non-state law requires that we provide at least a working definition of the state. Since the founding of a republican form of government in 1889, Brazilian constitutions have been federalist, with three levels of government — the federal or central state, the component states, and the municipalities. In general, Brazilian constitutions have divided executive power and legislative power between separate branches of government at all three levels, and have divided judicial power between the central level and the component state levels. In this study, the phrase "state law" refers to law which emanates from any of these levels and branches of state power, including its many institutions or apparatuses, albeit with the proviso — as I argue in this section ~ that state law is found in juridical relations rather than merely in its norms. In this study, the word "state" (standing alone or in the phrase "state law") refers to the levels and branches of state power collectively, while any reference to a component state of the Republic is followed by the name of the component state.

When dealing with relations of production, a legal pluralist approach would be first to posit that these relations are regulated by a form of law, and then to describe the overlapping forms of both state law and non-state law that regulate these relations within a particular legal field. A socio-legal approach to the study of state law should

According to Thompson, law is not merely superstructural but it is imbricated in productive relations: How can we distinguish between the activity of farming or of quarrying and the rights to this strip of land or to that quarry? The farmer or forester in his daily occupation was moving within visible or invisible structures of law...Hence law was deeply imbricated within the very basis of productive relations, which would have been inoperative without this law. E. P. Thompson, Whigs and hunters : the origin of the Black Act (New York: Pantheon Books, 1975), page 261. Bourdieu disputed Thompson's observation (at page 815): This concern with situating law at a deep level of historical forces once again makes it impossible to conceive concretely the specific social universe in which law is produced and in which it exercises its power. 18 acknowledge and unveil the power relations at work within the legal field, as Bourdieu suggested, while this pluralist approach to non-state law should concern itself no less with power relations, particularly when relations of production are at issue.49 Chapter 2 identifies the cacao region as a legal field in which a regional elite known as the burguesia cacaueira constructed its hegemony and regulated social relations through a "coherent and complex normative system." In a fictional account of social relations in the cacao region, Jorge Amado referred to the social rules of this legal field as the "lei do cacau" (law of cacao): in one of Amado's novels, the lawyer Virgilio headed off to Ferradas to meet his fate at the hands of a coronel he had recently cuckolded, and upon leaving he exclaimed:

Today I will go to Ferradas...I will die as the law here mandates, the law of cacao.50

Within the regional elite, the coroneis do cacau were a group of large growers who imposed the lei do cacau within the legal field which they dominated, although state law intertwined or overlapped with non-state law in various ways. In this approach, the gap between the juridical field and the social field may be measured by the degree to which the lei do cacau was influenced by state law or, stated otherwise, the degree to which the coroneis complied with the ETR, as it was interpreted in the juridical field. This interpretation process was constitutive of state law because state law consists of juridical relations rather than merely the norms and rules that govern these relations.51

Pluralism and domination or hegemony should be inseparable: Carlos Nelson Coutinho, A democracia como valor universal : notas sobre a questao democratica no Brasil (Sao Paulo: Livraria Editora Ciencias Humanas, 1980), page 30 50 Jorge Amado, Terras do Sem Fim (Rio de Janeiro: Editora Record, 1942), page 268. The original in Portuguese reads: Vou hoje a Ferradas...morrerei como manda a lei daqui, a lei do cacau. 51 For the origins of the commodity-form theory of law in Pashukanis's general theory, see Piers Beirne, and Robert S. Sharlet, Pashukanis : selected writings on Marxism and law (London; Toronto: Academic Press, 1980. This point was made eloquently by Evgeny Pashukanis: In material reality, a relationship has primacy over a norm. If not a single debtor repaid a debt, then the corresponding rule would have to be regarded as actually non-existent and if we wanted 19 While the social form of the relation between the coronets and rural workers was characterized by social inequality, the legal form of the relation — the juridical relation ~ was characterized by formal equality. In the formalist paradigm, under state law the legal form is central to the judicial outcome or the judicial relation. The centrality of the legal form may be illustrated through the example of the statutory definition of a rural worker {trabalhador rural) set out in the ETR:

For purposes of this statute, a rural worker is any person who provides services to a rural employer, on a rural property or in a rural setting, through a salary in money or in kind, or partly in kind and partly in money.53

Thus the legal form of the relation between a rural worker and his or her employer corresponded to a pre-existing social relation. In the legal form the parties were assumed to be equal, despite the social inequality of the social form. Within the juridical field the pre-existing social relation was regulated as a juridical relation, embracing the formal equality of the contending parties. Regardless of the degree to which social inequality influenced an outcome in the juridical field, state law was found in this formal outcome or in the juridical relation. To the extent that the corresponding social relation did not

nevertheless to affirm its existence we would have to fetishize this norm in some way...Law as an objective social phenomenon cannot be exhausted by a norm or rule, whether written or unwritten... It is not sufficient to know the normative content of law in order to confirm its objective existence. It is necessary to know if this normative content is realized in practice. From Beirne, and Sharlet, page 63. The commodity-exchange theory of law applies to Brazilian law because it was based on Roman law, in which contract was the basis of private law. 52 Legal formalists argue that the concept of the legal form is central to the understanding of juridical relations: ... legal formalism makes the notion of form central to the understanding of juridical relations...Form is the bedrock on which formalism rests...Legal form is concerned with the understanding of juridical relationships. Ernest J. Weinrib, "Legal Formalism: On the Immanent Rationality of Law," Yale Law J. 97.6 (1988): 949, page 957 53 ETR, Article 2. The original in Portuguese reads: Trabalhador rural para os efeitos desta lei e toda pessoa fisica que presta servios a empregador rural, em propriedade rural ou predio rustico, mediante salario em dinheiro ou "in natura" ou parte "in natura" e parte em dinheiro.

20 change to match the juridical relation, we can say the "rural worker/rural employer" relation continued to be regulated by the lei do cacau.

1.4 The rule of law in Brazil

We have seen that the phenomenon of interlegality describes the overlap of state law and non-state law in a given legal field, and the lei do cacau is an example of what this overlapping may look like. Santos argued that these overlapping legal orders compete for exclusivity, or to have a monopoly, and that state law distinguishes itself in this competition because for state law the quest for monopoly is relatively compelling.54 The liberal state in particular legitimates itself by its reliance on "the rule of law" — rather than the coercive approach of a dictatorship ~ and by the "rule of law" the theorists of the liberal state mean that the state has, or ought to have, a monopoly in the sense that state law governs, or ought to govern, equally and everywhere. The legitimation theory of the liberal state depends on the democratic character of the state. Less democratic states, such as Brazil's dictatorships, used the rule of law in the sense of the imperio de la ley (rule by law) rather than in the sense of the estado de derecho (a state governed by law) of liberal states, including the Fourth Republic, in which the imperio de la ley was expected to regulate the conduct of the governors as well as the governed.5 In Brazil the distinction

According to Santos: Irrespective of the plurality of normative orders we detect in society, each of them, taken separately, aspires to be exclusive, to have the monopoly of the regulation and control of social action within its legal territory. This is most patently the case with state laws, be they labour laws, criminal laws, or administrative laws. Santos, op.cit., fn 47, page 281 55 Judy Fudge, Eric Tucker, Labour before the law : the regulation of workers' collective action in Canada. 1900-1948 (Toronto: University of Toronto Press, 2004). All of the references to Fudge and Tucker in this chapter are from their introductory chapter. 56Cesar Rodriguez Garavito drew a distinction between the "imperio de la ley" and the "estado de derecho", two Spanish phrases which are both translated as "the rule of law". He defined the estado de derecho as follows: ...a political and legal system in which the governors and the governed are subject to the imperio de la ley. Cesar A. Rodriguez Garavito, "Globalizacion, reforma judicial y estado de derecho en Colombia y America Latina: el regresso de los programas de derecho y desarrollo," in Rodrigo Uprimny, Cesar A. Rodriguez 21 between imperio de la ley and estado de derecho was crucial as the political regime changed back and forth from a liberal state to a dictatorship. Whether or not the rule of en law represented "an unqualified good," from the perspective of the governed or the subaltern, the estado de derecho was preferable to the imperio de la ley.

Duncan Kennedy placed the judiciary and juridical relations at the center of an

CO estado de derecho. For Kennedy the rule of law required an independent judiciary with judges who were bound by "interpretive fidelity" to the relevant legal materials, and it required justiciable restraints on what one private party could do to another and on what the state could do to an individual.59 Kennedy sympathized with the rule of law as a matter of "political morality" but raised two reservations. First, the rule of law was not an absolute value for Kennedy and could be overridden by concerns of "substantial justice;" second, there was a down side to the rule of law, which had two aspects. The first aspect was that the rule of law tended to reinforce the existing social hierarchy. The second aspect was that when judges were confronted with a gap, conflict or ambiguity in the norms and rules of state law, they pursued their own "ideological projects" (Kennedy's phrase) to fill or resolve these gaps, conflicts and ambiguities, without admitting they were doing so. By not owning up to their ideological projects the judges tended to reinforce the social hierarchy of which they were part.

Garavito, and Mauricio Garcia Villegas, ^Justicia para todos? : sistema judicial, derechos sociales y democracia en Colombia (Bogota: Grupo Editorial Norma, 2006), page 406, footnote 1. The Spanish original of the passage quoted reads: El sistema politico y legal en el que gobernantes y gobernados estan sujetos al imperio de la ley.

57 E.P. Thompson characterized the rule of law as "an unqualified good." According to Thompson: And if the actuality of the law's operation in class-divided societies has, again and gain, fallen short of its own rhetoric of equity, yet the notion of the rule of law is itself an unqualified good. Thompson, op. cit., fn 48, page 267 58 If by unqualified good Thompson meant that the rule of law was an absolute value then Duncan Kennedy disagreed. For Kennedy, the political morality of the rule of law "depends on a context of other modern Western Liberal institutions": Duncan Kennedy, A critique of adjudication : fin de siecle (Cambridge, Mass.: Harvard University Press, 1997), page 14 59 IBID, page 13 22 There was a tension in Kennedy's formulation between interpretive fidelity and an ideological project — or "background prescriptive theory," to use a more Brazilian turn of phrase60 — which cannot be reconciled, although as Kennedy suggested it should at least be recognized.61 Interpretive fidelity is similar to what legal formalists refer to as "coherence", at least to the extent that coherence and fidelity both suggest that rationality or a "simple logical consistency" should guide the interpretation process. My usage of coherence is broader than mere rationality because it incorporates both fidelity and ideology as the criteria for evaluating the performance of Labour Justice. To the extent that Labour Justice ~ including the Vieira court ~ provided a coherent interpretation of the norms and rules of state law which were enacted to protect labour rights, it was acting according to the rule of law.

While Kennedy's approach is helpful with respect to the juridical field it contributes little to an understanding of how the rule of law plays out in the social field, particularly in Brazil where, as Oscar Vilhena Vieira argued, the existence of "profound and persistent social inequality" rendered the rule of law illusory.64 According to Vilhena,

Roberto Mangabeira Unger, "The Critical Legal Studies Movement," Harvard Law Review 96.3 (1983): 561-675. 61 This critique, like the critique of Garavito, was directed towards the approach of the rule of law movement, a wave of the law and development movement that came out of the U.S.: Pilar Domingo and Rachel Sieder, Rule of Law in Latin America: The International Promotion of Judicial Reform (Institute of Latin American Studies, London, 2001) 62 According to Weinrib: Coherence is the criterion of truth for the formalist understanding of a juridical relation. Weinrib, op. cit., fn 52, page 972. 63 Weinrib proposed "immanent coherence" for evaluating juridical relations, and I owe this distinction to William Edmundson, that is, the distinction between a metaphysical form of coherence and a more epistemological sense.William A. Edmundson, "Comments on "Coherence Theory in the Philosophy of Law" (KansasCity, Missouri 1974. Available inline at http://papers. ssra.com/sol3/papers. cfm?abstract_id=l 147392) 64 Vilhena argued that "a minimum level of social and economic equality between individuals is crucial for the establishment of reciprocal relations and for the existence of the rule of law": Oscar Vilhena Vieira, "La Desigualde y la Subversion del Estado de Derecho", SUR- Revista Internacional de Derechos Humanos 4.6 (2007): 29, page 28 and page 40. The original of the passage quoted reads in Spanish: 23 actual-existing state law in Brazil granted impunity to the elite and demonized the subaltern,65 while Mauricio Garcia Villegas argued more generally that a culture of non­ compliance was rooted in Latin American culture. Although the Brazilian elite may have had a culture of non-compliance or even impunity, for the subaltern, non­ compliance held out the prospect of serious consequences. Roberto da Matta, a Brazilian anthropologist, used to ask his students the following question:

How would you classify a person who obeys the laws in Brazil?

Inevitably the answer given was:

...whoever conducted himself this way was an inferior status person without resources.67

In rural Brazil, the experience of the agrarian social movement showed that its adherents valued the protection that state law afforded to organizational forms that were sanctioned by state law; for subaltern groups, the imperio de la ley meant that if they

...demostrar que un nivel minimo de igualdad social y economica entre los individuos es crucial para el establecimiento de relaciones de reciprocidad y para la existencia de un sistema de Estado de derecho. 65 The theme of impunity was explored without a class analysis by Rosenn in Keith S. Rosenn, "The Jeito: Brazil's Institutional Bypass of the Formal Legal System and Its Developmental Implications," The American Journal of Comparative Law 19.3 (1971): 514-49. A more enlightening treatment of this issue may be found in John French's groundbreaking study of the CLT: Drowning, fn 30. 66 According to Garcia: In Latin America there exists a striking phenomenon of non-compliance with social and judicial norms which has been going on since the colonial era. Mauricio Garcia Villegas, "Justicia, mercado y democracia: un examen critico de las teorias economicas sobe el (in)cumplimiento del derecho y su relacion con el dearrollo, la justicia y la democracia," in Rodrigo Uprimny, Cesar A. Rodriguez Garavito, and Mauricio Garcia Villegas Justicia para todos? Sistema judicial, derechos socials y democracia en Colombia (Bogota. Grupo Editorial Norma, 2006), page 98. The original in Spanish of the passage quoted reads: En America Latina.-.existe un marcado fenomeno de incumplimiento de reglas sociales y juridicas que viene desde la Colonia. With specific regard to the CLT, the theme of a culture of non-compliance was considered, along with other theories, by French in Drowning, fn 30. 67 Roberto da Matta, "The Quest for Citizenship in a Relational Universe," in John D. Wirth, Edson de Oliveira Nunes, and Thomas E. Bogenschild, eds., State and society in Brazil : continuity and change (Boulder: Westview Press, 1987). 24 were not in compliance with state law there was a high risk that the law would be used coercively against them and for this reason they complied.68

Although the compliance of the subaltern was procured by the threat of coercion, we saw earlier that the liberal state also relied on the rule of law as an ideological alternative to coercion. For Garcia Villegas, coercion was only one of three categories of reasons for compliance with state law: first, cumplimiento coercitivo (coercive compliance), compliance to avoid negative consequences; second, cumplimiento normativo (normative compliance), compliance because you accept the rule of law, as Thompson suggested, as "an unqualified good"; third, cumplimiento ideologico (ideological compliance), which Garcia Villegas defined as follows:

.. .there are people who only comply with the law when they think that it is a good law. If state law is adjusted to what they consider good, they comply; if it is not, they do not comply.69

The notion of cumplimiento ideologico (ideological compliance) applied both to rural workers and to the coroneis do cacau. For rural workers the ETR was accepted as a good law because it protected their labour rights while the approach of the coroneis was more pragmatic in the sense that they complied with some provisions of the ETR while resisting others. The pragmatism of the coroneis was to an extent consistent with the rule of law because state law constrained the use of coercion in the social field except for the limited purpose of enforcing the judgments of Labour Justice. A result of this constraint

Eric Hobsbawm characterized the attitude of Latin American peasants as one of "entrenched legalism," and he offered the following advice: The entrenched legalism of peasant land invasions is a fact which both the student and the agitator neglect at their peril. Eric Hobsbawm, "Peasant Land Occupations", Past and Present No. 62, (Feb. 1974) ppl20-152, at page 124 69 Mauricio Garcia Villegas, op. cit., fn 66, pages 90-91. The original in Spanish reads: ...hay personas que solo cumplen el derecho cuando lo prescrito por las normas es visto por ellas como bueno. Si el derecho official se ajusta a lo que consideran bueno, cumplen; de lo contrario, no lo hacen. 70 States other than Brazil used a system of labour inspection as an enforcement mechanism, as required by ILO Convention 81 of 1947, which Brazil signed in 1956 and proclaimed in 1957. General Medici, a 25 or limitation was that state law failed to achieve a monopoly in the social field ~ a common characteristic of the rule of law in circumstances of social inequality. During the Fourth Republic, the capacity of the agrarian social movement to coerce compliance through its campaign for labour rights was limited by the rule of law, and even that limited capacity was lost when the movement was halted by the military coup. As we saw in section 1.2, a structural limitation on coercive compliance was imposed by the CLT regime because the right of an employer to refuse to recognize an OLT (workplace organization) was, in effect, protected by state law. In the final analysis, the lei do cacau 71 was the rule of law [my emphasis].

1.5 Forms of labour control and regimes of industrial legality

I next turn to the study of rural unionism and the regulation of relations of production.

In section 1.2 we saw that by 1963 cacao workers were only two or three generations removed from slavery and that since the formal abolition of slavery the state had left the regulation of productive relations in the cacao region in the private hands of the coronets. Santos suggested that slavery would leave its imprint on productive relations even after abolition, and the historical novels of Amado confirmed this lingering imprint. My approach to the history of labour law in Brazil acknowledges ruptures like abolition but also stresses continuity in productive relations, since the desire to accumulate capital has been a unifying feature of Brazilian history since the arrival of the military President, renounced the convention in 1971, but it was reinstated under the civilian government of Jose Sarney in 1987. A study of labour inspection was carried out in 2003 in the construction industry in Rio de Janeiro: Cardoso, Adalberto; Lage, Telma, "A Inspeccao do Trabalho no Brasil," DADOS- Revista de Ciencias Sociais 48.3 (2005): 451-90. Evaristo de Moraes Filho referred to the lack of labour inspection as a factor which distinguished Brazil from more sophisticated nations ("nacoes cultas"): Moraes Filho, op. cit., fn 27. 71 Similarly, in his study of international law, China Mieville declared: The chaotic and bloody word around us is the rule of law. [his emphasis] China Mieville, Between equal rights: a Marxist theory of international law (Leiden; Boston: Brill, 2005), page 319 26 colonizer. Accumulation of surplus value has taken on various legal and social forms throughout this history, and as Silvia Lara suggested with reference to the formal abolition of slavery:

Now it is a question of going beyond the traditional dichotomy which tends to separate slaves and workers, to think of both as part of the long history of the formation of the country's working class.73

An approach which stresses this historic continuity is one that acknowledges the power relation between landholders and the former slaves and the social inequality between owners and workers which characterized the employment relation when the CLT and then the ETR were enacted. If we accept that the concept of antinomy between slavery and freedom ought to be abandoned, Nigel Bolland suggested the heuristic of "varieties of labour control" and "systems of domination" as an alternative approach.75 My approach, using "forms of labour control," follows Bolland's suggestion.

The "forms of labour control" approach is limited because it does not take into account another rupture in productive relations that occurred with the arrival of industrial legalism. Industrial legalism was a result of the efforts of industrial workers to organize collectively and in this historical sense it appeared first as a social relation. Antonio

Andre Gunder Frank used a "world systems theory" to argue that a "single concept" embraces the world system, "the process of capital accumulation", which for Gunder Frank began long before Portugal's colonization of Brazil: Andre Gunder Frank, "Review: Latin American Development Theories Revisited: A Participant Review," Latin American Perspectives 19.2, (1992): 125-39. 73 Silvia Hunold Lara, "O Brasil negro: novas dimensoes da experiencia escrava no Brasil," (2003): available online at www.comciencia.br/reportagens/negros/13.shtml. The original in Portuguese reads: Trata-se, agora, de ultrapassar a tradicional dicotomia que tende a separar escravos e operarios, para pensar ambos como parte da longa historia de formacao de classe trabalhadora no pais. 74 Through his study of rural unionism, Clifford Welch launched "a new theme of continuity for Brazilian history — a theme of rural worker agency in the making of rural Brazil." Cliff Welch, The seed was planted : the Sao Paulo roots of Brazil's rural labor movement. 1924-1964 (University Park, Pa.: Pennsylvania State University Press, 1999) 75 O. Nigel Bolland, "Systems of Domination after Slavery: The Control of Land and Labor in the British West Indies after 1838," Comparative Studies in Society and History 23.4 (1981): 591-619, page 593. He described one of the purposes of his work as: ...to suggest the need to abandon the concept of the antinomy of slavery and freedom and to seek to promote the comparative study of transition from slave to wage labor, in terms of varieties of labor control, as an aspect of the transformation of systems of domination. 27 Gramsci identified industrial legalism as the voluntary recognition of the union's role in regulating productive relations in the workplace. As a communist, Gramsci argued that industrial legalism "represented an important first step to socialist transformation, but only a first step."76 Gramsci wrote:

The emergence of industrial legality is a great victory for the working class, but it is not the ultimate and definitive victory. Industrial legality has improved the working class's material living conditions, but it is no more than a compromise — a compromise which had to be made and which must be supported until the balance of forces favours the working class.77

Gramsci pointed to the risk that industrial legalism represented for the union movement, that a union would abandon political contention and restrict itself to an 78 economic role of a "mere wholesaler of labour power". As we saw in section 1.2, the corporatist structure of the CLT was designed to achieve precisely this result. In reaction, the union movement responded during the Fourth Republic by organizing parallel organizations with more ambitious agendas. We also saw that the Gramcian notion of voluntary recognition in the workplace did not accurately describe the structure of the CLT because employers retained the right (and power) to refuse to recognize an OLT (workplace organization).

While industrial legalism originated in social relations it was introduced into state law as a means of accommodating the demands of organized labour and to co-opt union movements into accepting the rule of law. State law eventually acknowledged the right of 70 workers to organize as "collective political actors" (sujeitos politicos coletivos). The state undertook to protect their right to organize unions and state law required employers to recognize the agency of unions according to the rule of law. This caused a change in 76 Frank R. Annunziato, "Gramsci's Theory of Trade Unionism," Rethinking Marxism 1.2 (1988): 142, page 156 77 Antonio Gramsci, "Soviets in Italy," New Left Review 1.51 (1968): 28. 78 This argument was developed by Eric del Junco in "Irreconcilable differences: a contribution to the critique of bourgeois labour law" (unpublished masters thesis, Osgoode Hall Law School, 1991), page 47. 79 Coutinho, op.cit., fn 49, page 26 28 the legal form because a collective actor rather than an individual actor became party to the corresponding juridical relation. Although this rupture should be acknowledged, the character of the legal form remained unchanged and the juridical relation between workers and owners continued much as before.

The arrival of industrial legalism elevated the agency of workers to a different platform, beyond the descriptive capacity of the "forms of labour control" approach. Judy Fudge and Eric Tucker proposed the heuristic of "regimes of industrial legality" as an alternative approach, which they used to describe a historical progression in Canada from "liberal voluntarism" to "industrial voluntarism" to "industrial pluralism". Industrial pluralism in Canada was similar to the regime of "free collective bargaining" which the U.S. urged Brazil to adopt during the "redemocratization" process after the war. A regime of industrial legality was more complex than a form of labour control because it involved a distinct system of labour law within the general corpus of state law which was brought about by the accommodation of a collective actor within the legal form. For Fudge and Tucker a regime of industrial legality resulted from "the inevitable attempts by liberal states to institutionalize norms and mechanisms for resolving the conflict that is endemic to capitalist relations of production." Industrial pluralism or "contractualism" was one way of resolving this conflict while the corporatist approach of the CLT was another. In either case the conflict continued because it was endemic to capital accumulation, as Fudge and Tucker suggested.82

The term "industrial pluralism" has been given various meanings by North American authors but my usage is borrowed from Fudge and Tucker, op. cit., fri 55. Harry Arthurs proposed a descriptive use of the term in Arthurs, "Industrial Pluralism", op. cit., fn 46. I have adopted this descriptive approach, which is consistent with that of Fudge and Tucker. 81 Lothian and Gacek debate, fri 27. 82 Arthurs also suggested that the interests of capital and labour are inherently conflictual: Relations, institutions and norms within the field are all intensely contested, since the defining characteristic of labour law is its attention to conflicts and cooperation between, among, and within different economic and social interests. Arthurs, "Industrial Pluralism", op. cit., fn 46, page 32 29 Fudge and Tucker were careful to argue that the historical progression in Canada from one regime of industrial legality to another represented neither the abandonment of coercion nor the embracing of state support for the union movement. A regime of industrial legality is the result of collective action or mutuality and an attempt by state law to accommodate mutuality within the rule of law. A regime of industrial legality is complex and involves coercion, accommodation and support in varying degrees according to the circumstances, and the state reserves for itself the right to deploy its RSA (Repressive State Apparatuses)84 when deemed appropriate. A regime of industrial legality preserves the element of "freedom of contract"85 or "voluntarism" 86 which allows employers and unions to negotiate agreements within the revised legal form which industrial legalism introduced. A structural distinction between the CLT regime and the Canadian regime of industrial pluralism was that in the CLT regime the recognition by employers of an OLT was an aspect of voluntarism while in the Canadian regime it was an aspect of coercion.

The fact that these five elements — coercion, accommodation, support, mutuality, voluntarism — were all imbricated in a regime of industrial legality in varying degrees explains why the CLT regime was able to survive the transition from the Estado Novo dictatorship to the liberal state of the Fourth Republic and the transition back to a

According to Fudge and Tucker: [o]ne of the principal responses of workers to their subordination in capitalist labour markets has been mutuality... Fudge and Tucker, op. cit, fn 55 84 Althusser referred to the state as a single RSA (Repressive State Apparatus) but RSA in the plural sense refers to the army, police, militia etc.: Louis Althusser, "Ideology and Ideological State Apparatuses (Notes towards an Investigation)" Lenin and Philosophy and Other Essays. (Monthly Review Press, 1971) 85 The Canadian regime of industrial pluralism migrated from the U.S. and is a variant of the Wagner Act model (or form) which is sometimes referred to as "contractualist" or "free collective bargaining". For a concise history of the origins of the industrial pluralism regime in Canada, see the historical introduction to George Adams, Canadian Labour Law (Canada Law Book Inc, Aurora, 1985) 86 According to Fudge and Tucker, voluntarism was a "unifying characteristic of all capitalist regimes of industrial legality." 87 In the Canadian regime, the rules of bad faith bargaining and unfair labour practices require an employer to accept a union proposal for an OLT. 30 dictatorship in 1964. When the military regime took power, the corporatism of the CLT regime served the new Minister of Labour well as the regime replaced the trabalhismo of the Fourth Republic with its own novo (new) trabalhismo. As James Gardner argued, the Minister "merely had to utilize fully the existing mechanisms" to reinstate his Ministry's control over the union movement.

We have seen so far that the CLT was more like a regime of industrial legality than a form of labour control, which only partially answers the "fundamental question" posed by Dinius of whether the CLT was a "tool of labour control" or a "pathway" to challenge capitalist power: the CLT proved to be both because its character changed as the character of the political regime changed. The character of the ETR mirrored that of the CLT and its enactment in 1963 reflected the conflicted policies of the developmental nationalists towards rural workers. On the one hand the statute acknowledged that rural workers were an historically disadvantaged group in need of protection91 and on the other hand the developmental state, guided by developmental nationalism, used industrial legalism to co-opt and control the agrarian social movement through strategies of accommodation and support. The military regime was less conflicted and used the same statute more for the purpose of control than protection.

The CLT regime was substantively amended by the constitution of 1988 but remains in effect until the present (2009). 89 This phrase is also taken from Negro, Linhas, fn 33 90 Gardner, op. cit., fh 44, page 121, quoting from Alfred Stepan. 91 Agricultural workers were found to be historically disadvantaged in Canada also: Distinguishing features of agricultural workers are their political impotence, their lack of resources to associate without state protection and their vulnerability to reprisal by their employers; as noted by Sharpe J., agricultural workers are "poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility." Fraser v. Ontario (Attorney-General) (2009) 92 O.R. 3d 481 (OCA). The quoted passage is from Bastarache J., in Dunmore v. Ontario (Attorney General). [2001] 3 S.C.R. 1016, paragraph 41. The reference to Sharpe J. is from the trial level decision: Dunmore v. Ontario (Attorney General) (1997) 37 O.R. (3d) 287. 31 1.6 An interactional approach to contention

Charles Tilly proposed an "interactional approach" to the study of the social field that may also be applied to the juridical field. Tilly's notion of a "political opportunity structure" proceeded from the "interactional way of thinking" that he proposed for the study of social movements. In a later work Tilly linked the political opportunity structure to changes in political regimes to show that the ability of a social movement to campaign for its demands, and the form of its campaign, depended on the POS (political opportunity structure) that the regime made available. In Part II of this dissertation I apply an interactional approach to the agrarian social movement in the cacao region. In addition to the POS, Tilly maintains an interactional approach ought to consider the social networks in which the participants in a social movement were already embedded and the identity markers deployed by the social movement to mobilize the participants to support its campaign. The idea of a campaign — as opposed to a one-off performance ~ was central to Tilly's definition of a social movement. For Tilly a social movement is a collective political actor that sustains a campaign in support of its demands. 94 Public support for the campaign depends on four factors that Tilly summarized in the acronym

According to Tilly: ...movements depend intimately on the social networks in which their participants are already embedded, that the identities deployed in collective contention are contingent but crucial, that movements operate within frames set by a historical accumulation of shared understandings, that political opportunity structure [emphasis mine] significantly constrains the histories of individual social movements, but that movement struggles and outcomes also transform political opportunity structures. Charles Tilly, "Social Movements and (All Sorts of) Other Political Interactions - Local, National, and International - Including Identities," Theory and Society 27.4, Special Issue on Interpreting Historical Change at the End of the Twentieth Century (1998): 453-80, page 456. For an application of this approach to rural unions in Brazil see Arilson Favareto, "Agricultores, Trabalhadores: os trinta anos do novo sindicalismo rural no Brasil," Revista Brasileira de Ciencias Sociais 21.62 Outubro (2006): 27-44. 93 According to Tilly: Regimes necessarily shape social movements, including the sheer possibility that social movements can occur at all. Charles Tilly, Regimes and repertoires (Chicago: University of Chicago Press, 2006), page 186 94 Tilly argued that social movements are a relatively recent political phenomenon but by combining campaigns, repertoires and WUNC they have succeeded in establishing themselves as protagonists in the field of subaltern politics and legality. 32 WUNC-- Worthiness, Unity, Numbers and Commitment ~ in which the letter U stands for unity.95 We will see in later chapters that there was a tension within the agrarian social movement between a quest for unity and a contest for hegemony among competing leadership groups.

A campaign involves a prolonged series of interactions with the social actors who were the object of the social movement's demands. Tilly referred to these social actors collectively as the counter-movement.96 Tilly used the notion of "contention" to describe the interactions within the social relation (between the movement and counter-movement) which were intended to elicit a positive response to the movement's demands. According to Tilly "forms of contention" emerge, with rules and conventions which can be discerned by social science. As the campaign progresses the social movement develops a "repertoire of contention," that is, "a limited set of routines" which are "the established ways in which pairs of actors make and receive claims bearing on each other's interests." 97 As the word "repertoire" suggests, forms of contention are learned or acquired from

Tilly provided a definition of the WUNC terms in Regimes and Repertoires fn 93, page 96 According to Tilly: In most cases the appearance of a social movement incited the formation of a counter- movement by those whose interests the movement threatened. Charles Tilly, "Contentious Repertoires in Great Britain, 1758-1834," Social Science History 17.2 (1993): 253-80, page 275 97 Tilly explained why he chose the word repertoire: The word repertoire identifies a limited set of routines that are learned, shared, and acted out through a relatively deliberate process of choice. Repertoires are learned cultural creations, but they do not descend from abstract philosophy or take shape as a result of political propaganda; they emerge from struggle. ..[RJepertoires of contention are the established ways in which pairs of actors make and receive claims bearing on each other's interests. IBID, page 264. For an application of Tilly's heuristic in Latin America, see David Sowell, "Repertoires of Contention in Urban Colombia, 1760s-1940s: An Inquiry into Latin American Social Violence," Journal of Urban History 24.3 (1998): 302-36. Ricardo Salvatore used a variant of Tilly's heuristic in Argentina which he called "repertoires of coercion," which he defined as follows: In this article, I suggest the usefulness of the concept of "repertoires of coercion" to envision the multiple situations of violence that a society generates. A simple inventory of means of coercion at the disposal of a given set of dominant agents acting in certain institutional sites, repertoires of coercion provide us with a way of mapping the diffusion of coercion across society...Repertoires 33 social practice or are taught to participants by a more experienced participant who learned or acquired the form of contention from campaigning in another context. The contentious repertoire of a social movement may include various forms of contention such as petitions, strikes, demonstrations, "gheraos"99 and so forth.

So far we have seen that contentious repertoires are regulated by the informal rules and conventions of non-state law. However, contention takes on a legal form when the social movement's campaign enters the juridical field. The rationality of a social movement is different from the rationality of a juridical field but legal change — that is, a change in juridical relations ~ can lead to the social change which the movement seeks when the interpretation process of the juridical field is used strategically as a form of contention.100

We will see in Part II that the structure of Labour Justice was bifurcated to accommodate two forms of contention, the dissidio coletivo (collective dispute) and the dissidio individual (individual dispute). In its campaign for labour rights, the agrarian social movement made limited use of the dissidio individual as a form of contention, while in the logic of novo trabalhismo the dissidio individual was the only form of contention that state law would tolerate. In Part III of this dissertation, the case study will show that the dissidio individual was available in the Vieira court as a coherent form of contention, but that rural unions in the cacao region were unable or unwilling to deploy

of coercion, the result of this dynamic between domination and resistance, represent a socially defined limit or boundary to the exercise of coercion. Ricardo D. Salvatore, ""Repertoires of Coercion and Market Culture in Nineteenth-Century Buenos Aires Province"," International Review of Social History 45 (2000): 409-48, page 415 98 Tilly called such people "brokers". 99 The word "gherao" is a Hindi word which is found in English language dictionaries. In India a gherao was used to surround the home or office of an official with a crowd of protesters until he acceded to the crowd's demands. The Ligas Camponesas used this technique in Northeastern Brazil against the "cambao," a semi-feudal practice which required peasants to work unpaid on behalf of the landholder: Francisco de Assis Lemos de Souza, Nordeste : o Vietna que nao houve : ligas camponesas e o golpe de 64 (Londrina, Parana; Editora da Universidade Estadual de Londrina, 1996) 100 For example, see Houtzager's study of the MST, fn 42. 34 the dissidio individual in their campaign for labour rights, thus leaving individual cacao workers to their own devices.

1.7 The argument

During the Fourth Republic, the agrarian social movement campaigned for labour rights and in 1963 the state accommodated this demand by enacting the ETR and expanding the system of Labour Justice. In the cacao region the Vieira court provided a coherent forum in which the labour rights of cacao workers were protected but the limitations of state law, and its limited recourse to effective means of coercion, allowed the cacao growers to comply with some provisions of the ETR and to resist others. The promise of labour rights was therefore not fulfilled in the cacao region for three reasons: a change in the political regime, structural defects in the labour law regime, and the flawed performance of the region's rural unions.101

1.8 Chapter synopsis

The dissertation consists of this introductory chapter (Chapter 1), a concluding chapter (Chapter 11) and three substantive parts with three chapters in each part (Chapters 2-4, 5-7 and 8-10 respctively).

Part I is a discussion of the agrarian social movement in the cacao region, using the interactional approach proposed by Tilly. Chapter 2 considers the social network in which rural workers were embedded in the cacao region and includes a historical review of how the regional elite constructed both its hegemomy and a regional legal culture. This chapter provides an overview of the modes of production and then identifies the forms of labour control that were used within the cacao economy. Chapter 3 considers the political

101 Here the argument seeks to avoid what Hobsbawm referred to as "counter-factual" history", or an argument that "if my grandmother had wheels she'd be a greyhound bus", to use his example: E. J. Hobsbawm, "Labor History and Ideology," Journal of Social History 7.4 (1974): 371-81. 35 opportunity structure that was available to the region's rural workers during four successive political regimes : the New Republic, the Estado Novo, the Fourth Republic and the post-1964 military regime. Chapter 4 tells the story of the campaign for labour rights which was conducted in the region during these political regimes, both before and after the enactment of the ETR.

Part II is a discussion of the system of Labour Justice from its origins through to the time of the military regime. Chapter 5 traces the origins of Labour Justice and describes the historical process by which it was constructed as a juridical field, showing that it continued to function as an independent judiciary throughout the time of the Vieira court despite the constraints imposed by the military regime on the judicial branch of government. Chapter 6 is concerned with the dissidio coletivo (collective dispute) and argues that the relation between the normative power and the right to strike was a source of antipathy between organized labour and Labour Justice. The chapter critiques the manner in which Labour Justice exercised its normative power, using a case study of the concept of assiduidade integral (perfect attendance). It also demonstrates that a union campaign against assiduidade integral deployed various forms of contention, including the dissidio coletivo. Chapter 7 is concerned with the dissidio individual. Through a review of the existing literature, the chapter examines the way in which the dissidio individual deviated from the "ideal model" which the trabalhistas proposed to protect labour rights. The chapter compares the way the dissidio individual was approached by the agrarian social movement and industrial unions during the Fourth Republic to the more strategic approach of the "new unionism" movement.

The strategy included constructing an OLT or "comissao de fabrica" which was a distinguishing feature of the new unionism movement. The "comissao de fabrica" first featured in academic literature in 1972, in a study by Weffort of strikes which occurred in the municipalities of Contagem and Osasco in 1968: Francisco Correa Weffort, Participacao e conflito industrial: Contagem e Osasco 1968 (Sao Paulo: Cebrap, 1972). More recently the concept has been defined by the metalworkers union in the auto sector as the CSE or Comite Sindical de Empresa. 36 Part III is a case study of the Vieira court which is based on the contested claims filed by rural workers during the lifespan of the ETR. Chapter 8 examines the juridical field, beginning with the structure of the junta and its caseload, then moving to a discussion of the legal agents and the relations between and among the junta, the local labour bar, the regional elite, and finally the rural unions. Chapter 9 is structured around the issue of procedural fairness and examines how the junta approached and resolved the various procedural dilemmas which it confronted in the service of documents, the conduct of the hearings and the enforcement of its own judgments. Chapter 10 is concerned with the substantive issues which faced the junta and is focused on three core labour rights: the claimant's identity as a rural worker, protection against discharge without just cause, and the minimum wage.

My conclusions are set out in Chapter 11.

37 Part I: The agrarian social movement

Part I is a study of the agrarian social movement in the cacao region, using the interactional approach discussed in section 1.8. According to Charles Tilly, an "interactional way of thinking" involves a consideration of the social network within which the participants were already embedded and the political opportunity structure which was available to the social movement within a particular political regime. Tilly defined social movements as "collective political actors that sustain a campaign in support of their demands," and he argued that the "identities deployed in collective contention" were crucial in the campaign. Using this interactional approach, this part is organized around the themes suggested by Tilly: Chapter 2, the social network; Chapter 3, the political opportunity structure, and Chapter 4, the campaign of the agrarian social movement in the cacao region, which deployed the identity of "cacao worker" in its campaign for labour rights.

38 Chapter 2: The social network

2.1 Introduction to Chapter 2

The political opportunity structure of the Fourth Republic (1945-1964) allowed the agrarian social movement to conduct a campaign for agrarian reform. Although the campaign flourished in various states throughout rural Brazil, it was characterized by the demand for land reform in the state of Pernambuco and the demand for labour rights in the state of Sao Paulo. In the state of Bahia, cacao workers launched a campaign for labour rights in the wake of the Revolution of 1930; this campaign was interrupted by the Estado Novo and it resumed in 1952 as an integral part of the agrarian social movement's campaign for agrarian reform.

The south of Bahia, which later became the cacao region, was one of the first points of contact between the colonizer and indigenous peoples. Ilheus was founded in 1534 and was one of the fifteen capitanias (captaincies) of Portugal's American empire. Contention over land between the colonizer and the region's indigenous peoples restricted the spread of colonization for three hundred years until the planting of cacao began in earnest after 1820. By 1890 the region was dedicated to the monoculture of

1 Antonio Fernando Guerreiro Freitas and Maria Hilda Baqueiro Paraiso Caminhos ao Encontro do Mundo: A Capitania, os Frutos de Ouro e a Princesa do Sul. Ilheus 1534-1940 (Ilheus, Bahia, Brasil: Editus, 2001). Maria Hilda Paraiso is a historia n of Bahia's indigenous peoples and she relates the story of their resistance in Ilheus in this book which she co-authored with Antonio Guerreiro. A local chronicler known as Silva Campos relates several incidents in this history from the perspective of the colonizer: Joao da Silva Campos Cronica da Capitania de Sao Jorge dos Ilheus (Rio de Janeiro: Ministerio da Educacao e Cultura: Conselho Federal de Cultura, 1981). For events from the 1930s involving the infamous Caboclo Marcelino from Olivenca, see Marcelo da Silva Lins, "Os Vermelhos do Cacau: Comunistas no Eixo Ilheus/Itabuna (1935/1937)" (unpublished monograph, Universidade Estadual de Santa Cruz-UESC, 2004) and "Os vermelhos nas Terras do Cacau: a presenca comunista no sul de Bahia (1935-1936) (unpublished masters thesis, Universidade Federal de Bahia, 2007), by the same author.

39 cacao and became known as the "chao de cacau " (land of cacao); cacao became known as the "fruto de ouro'" (golden fruit) and the city of Ilheus became known as the "Princesa do Sul" (the Princess of Southern Bahia).4

With state assistance, the cacao growers removed the indigenous population from the land and large growers expropriated land which had been planted by smaller growers. This process of "primitive accumulation"5 was coercive and violent but the large growers were honoured in the traditional historiography of the region as desbravadores (pioneers) who conquered the forest using "fire, gunpowder and his axe."6 According to this desbravador myth, after they conquered the land they built the cities and transformed themselves into the coronets do cacau (cacao colonels) and used their wealth and charisma to dominate the political, economic and social life of the region until the Revolution of 1930 and beyond. The region's amateur historians produced a regional

2 Wright approached his study of the region from the perspective of a monoculture: Angus Lindsay Wright, Market, land and class : southern Bahia. Brazil. 1890-1942 (unpublished PhD thesis, University of Michigan, 1976). For an earlier anthropological study of the region, inspired by the work of Charles Wagley, see Anthony Leeds Economic Cycles in Brazil; the Persistence of a Total Culture-Pattern;Cacao and Other Cases (unpublished PhD dissertation, Columbia University, 1957). 3 This phrase was used by Adonias Filho as his title in Adonias Aguiar Filho Sul da Bahia: Chao de Cacau (Rio de Janeiro: Civilizacao Brasileira, 1978). 4 This phrase was used by Antonio Fernando Guerreiro de Freitas in "Os Donos dos Frutos de Ouro," (unpublished masters thesis, Universidade Federal de Bahia, 1979). 5 Marx's concept of primitive accumulation was focused on the land: In actual history it is notorious that conquest, enslavement, robbery, murder— briefly, force— play the great part...As a matter of fact, the methods of primitive accumulation are anything but idyllic... In the history of primitive accumulation, [t]he expropriation of the agricultural producer, of the peasant, from the soil, is the basis of the whole process. The history of this expropriation, in different countries, assumes different aspects, and runs through its various phases in different orders of succession, and at different periods.

Marx "The secret of Primitive Accumulation", in Capital, Vol. 1. Part viii. Chapter xxvi (Moscow English edition, n.d.), pp. 667-70

6 Adonias Filho, op. cit., fn 3, page 28. The original phrase in Portuguese reads: ...conquistam a selva com fogo, polvora e machado. The word "desbravamento" refers to the clearing of untamed forest and the planting of cacao trees. 40 historiography which uses five cycles of cacao production to chart the region's progress from stagnancy to prosperity:7

1. the early cycle: from 1746, when the first cacao tree was planted in the region, until 1820 when the phase of desbravamento — clearing the Atlantic Forest {Mata Atldntico) - -began. 2. the desbravamento cycle: from 1820, when planting began in earnest to 1895, when the monoculture of cacao was consolidated as the economic base of the region. 3. the coroneis cycle: from 1895 to 1930, when Brazil was established as the world's largest producer of cacao; 4. the Vargas cycle: from 1930 when Vargas came to power to 1957 when CEPLAC was created. 5. the "agricultural industrialization"8 cycle: the story of CEPLAC, from 1957 to 1989, the year in which "witch's broom" (vassoura de bruxa) took hold in the region and devastated the crop.

In opposition to this traditional historiography, a subaltern history was suggested by Wanderlito Barbosa (Litinho), a school teacher from the Municipality of Itajuipe, who complained:

Today the streets of Itajuipe bear the names of the coroneis, in honour of their acts which are well described as banditry. What a sad example for our young people.9

7 The cycles were identified by Adonias Filho, op. cit., fn 3, page 27-28. The same structure of cycles was used by Baiardi in Amilcar Baiardi, Subordinacao do trabalho ao capital na lavoura cacaueira da Bahia (Sao Paulo: HUCITEC ; Salvador, 1984) 8 This term is taken from Kautsky: Karl Kautsky, The agrarian question : in two volumes (London: Zwan, 1988). 9 Wanderlito Barbosa (Litinho), Retrospectivo (Itajuipe: Edicao do Autor, 1993), page 29. The original in Portuguese reads: Hoje, os coroneis, em homenagem aos seus atos de banditismo (para muitos meritos), tem seus nomes dados as ruas de Itajuipe. Triste exemplo tansmitido a juventude. 41 Although the monoculture of cacao is also the meta-narrative of this subaltern history, the desbravador myth was replaced by the concept of regional hegemony. This opened up the role of subaltern groups in the process of accumulation for further study.10

The chronology of this chapter covers the first three cycles of cacao production and follows the lines of inquiry suggested by Litinho's subaltern history. The chapter examines the construction of regional hegemony by a composite social class known as the burguesia cacaueira and then shows how this hegemonic class organized productive relations in various forms of labour control. In their totality these forms of labour control constituted the labour law regime of the lei do cacau.

2.2 The burguesia cacaueira

The burguesia cacaueira was a social class formed out of three competing, but closely related, class interests: a gentry class of growers, a class of nouveaux riches growers, and a commercial class which mediated between the region's growers and the world system.

The gentry class was an imprint left in the region by the Imperial order which came to an end in 1889 with the overthrow of Emperor Pedro II. The social formation of the Empire was dominated by a mode of production known as "colonial slavery,"11 and although Ilheus was an undeniable part of this slave society,12 the traditional

According to Marx, the myth that the wealth of the coroneis was acquired through courage, virtue and hard labour was the sort of "insipid childishness [which] is every day preached to us in the defence of property." Karl Marx, Capital Vol. 1, fn. 5, page 668 11 The notion of "colonial slavery" was used by Jacob Gorender to identify the mode of production used in Brazil during the nineteenth century: O escravismo colonial (Sao Paulo: Editora Atica, 1978). 12 Slaves in Ilheus enjoyed a unique tradition of collective resistance. In 1789, at the Engenho Santana, rebellious slaves, under the leadership of Gregoriano Luis, organized a strike which lasted two years until Luis presented a list of written demands which led to an agreement with the owner which allowed the 42 historiography denied the use of slave labour in the planting of cacao. The involvement of the region's indigenous peoples in planting cacao is not well documented,14 but the involvement of black slaves in the planting of cacao was established convincingly by Mary Ann Mahony.15 Relying on primary sources, Mahony showed that the region was home to a gentry class of semi-aristocratic families which controlled the land prior to the cacao boom and used African slaves to clear the land and plant cacao. These families started out as a latifundidrio class, meaning that they laid claim to vast tracts of idle land. The gentry land was the region's most fertile and accessible land because it was on the banks of the two river systems — the Rio Almada and the Rio Cachoeira — that reached the ocean at Ilheus. As the cacao economy developed the latifundiarios dedicated their land to the planting of cacao and expanded their landholdings towards the interior to plant

slaves to work their own garden plot two days a week and to "brincar, folgar e cantar" (play, rest and sing) as they wished during their leisure hours. Janete Ruiz Macedo and Andre Luis Rosa Ribeiro Ilheus: Tempo. Espaco e Cultura (Itabuna, Bahia, Brasil: Agora Editoria Grafica, 1999), page 90. The agreement proposed by Luis was reproduced at page 90 and as an appendix in Joao Jose Reis and Eduardo da Silva, Negociacao e conflito : a resistencia negra no Brasil escravista (Sao Paulo-SP: Companhia das Letras, 1989). The owner at the time was Manuel da Silva Ferreira.

13 According to Adonias Filho:

...the desbravador had neither the black slave nor the Indian slave at his service.

Adonias Filho, op. cit., fn 3, page 42. The original in Portuguese reads:

O desbravador grapiuna nao teve o negro escravo e nem o escravo indio a seu service 14 Indigenous slavery in Brazil was formally abolished in the 18th century but the purported antinomy between slavery and freedom can be rejected because the literature refers to "entradas preadoras" (raiding parties) that were used to round up indigenous forced labour.According to Maria Hilda Baqueiro Paraiso the labour of the indigenous population was widely used in the 19th century: Caminhos. fn 1, page 54; and see Andre Luis Rosa Ribeiro Familia. Poder e Mito: o Municipio de S. Jorge de Ilheus (1880-1912) (Ilheus, Bahia, Brasil: Editus, 2001), page 47. 15 Mary Ann Mahony, The world cacao made: society, politics, and history in southern Bahia. Brazil. 1822- 1919 (unpublished PhD thesis, Yale University 1996). 16 There were three other major river systems in the region: the Rio Pardo to the north, the Rio Jequitinho and the Rio Concha to the south. 43 more cacao for export to the international market. As growers engaged in a capitalist mode of production, these latifundidrios formed a gentry class.

A second class of growers arrived from outside the region, the novos ricos or nouveaux riches, and they became wealthy as a result of a boom in cacao production. The cacao economy boomed in the late 19 century as the industrial revolution in Europe created an upsurge in demand and allowed for the introduction of cacao species that could be grown on the less fertile lands of the region's interior, away from the river banks.18 The state government of Bahia recognized the development potential of the cacao region and responded by offering subsidized transportation to encourage migration to the region. At the same time there was a surplus of labour in Bahia because the sugar economy of its Reconcavo region had been in decline throughout the 19' century and virtually collapsed when slavery was abolished in 1888.19 In addition, the sertdo (hinterland) region, which Bahia shared with the neighbouring state of Sergipe, was plagued by periodic droughts which forced the sertanejos to choose between migration and starvation.

E. P. Thompson, "Modes de domination et revolutions en Angleterre," Actes de la recherche en sciences socjajes 8-9 (1976): 133. 18 For the history of cacao within the world system and the specific history of the cacao boom in Bahia, see Mahony, The world cacao made , fn 15. For a technical study of the method of cacao production in Bahia, see Clovis Caldeira Fazendas De Cacau Na Bahia. (Rio de Janeiro: Ministerio da Agricultura, Servico de Informacao Agricola, 1954). For a technical study of cacao production in the region from a geographical perspective, see, Carlos de Castro Botelho, "Aspectos Geograficos Da Zona Cacaueira Da Bahia." Revista Brasileira de Geografia Ano XVI. abril-junho de 1954 (1954): 3-51. 19 The Reconcavo region surrounds the Bahia de Todos os Santos on which Salvador is located. This was Bahia's traditional sugar growing region where the labour was provided by African slaves For the history of the decline of slavery in the Reconcavo, see B. J. Barickman, "Persistence and Decline: Slave Labour and Sugar Production in the Bahian Reconcavo, 1850-1888," Journal of Latin American Studies 28.3, Brazil: History and Society (1996): 581-633 and Silvio Humberto dos Passos Cunha, "Um Retrato Fiel da Bahia: Sociedade-Racismo-Economia na Transicao para o Trabalho Livre no Reconcabvo Acuareiro, 1871- 1902," (unpublished doctoral thesis,nUniversidade Estadual de Campinas-UNICAMP, 2004). For the movements of former slaves after abolition, see Walter Fraga Filho, Encruzilhadas da Libertade: Historia s de Escravos e Libertos na Bahia (1870-1910) (Campinas, Sao Paulo, Brasil: UNICAMP, 2006). For the story of the abolition campaign in Bahia, see Jailton Lima Brito A Abolicao na Bahia: 1870-1888 (EDUFBA, Salvador, 2003). 44 The cacao region contained vast tracts of idle land which the constitution of the Old Republic (1891-1930) placed under jurisdiction of the state government.20 In 1897 the Bahian government enacted its first land law, holding out the promise that small landholders who squatted on state land could eventually gain legal title.21 The former slaves and the sertanejos aspired to own their own plot of land while many newcomers to the region who arrived with a modest amount of capital were able to accumulate land and wealth rivalling that of the gentry class. The coastal land and the river banks were already in the hands of the gentry, so the newcomers settled in the interior and made Itabuna their commercial and political capital. The newcomers who became wealthy formed the novo rico class.

Antonio Fernando Guerreiro de Freitas (Guerreiro) identified the elite which achieved hegemony in the region as the burguesia cacaueira (cacao bourgeoisie), a composite class which united the three formerly competing classes, in defence of what they defined as "the regional interest". The process of class formation was a variation of "the English model" in which the gentry combined with commercial and other interests. In the case of the burguesia cacaueira, commercial capital first allied with the gentry and then forged a broader alliance which included the novo rico growers. Commercial interests were effective in forging this alliance because the regional interest was dependent on access to the international market.

For historical reasons, these lands were referred to as "terras devolutas". For an analysis of the history of land law in Brazil, see Ligia Maria Osorio Silva Terras devolutas e latifundio : efeitos da lei de 1850 (Campinas, SP, Brasil: Editora da Unicamp, 1996) 21 Mary Ann Mahony, "Afro-Brazilians, Land Reform, and the Question of Social Mobility in Southern Bahia, 1880-1920," in Hendrik Kraay, ed. Afro-Brazilian culture and politics : Bahia. 1790s to 1990s (Armonk,N.Y.: M.E. Sharpe, 1998) 22 Guerreiro introduced the term novos ricos, while Mahony used the phrase nouveaux riches to refer to the same social class: Mahony, The world cacao made , fn 15 23 Guerreiro, op.cit., fn 1 24 The English model was identified by Thompson: ...the "English" model is characterized by the continuing domination of a landed bourgeoisie (gentry) which transforms itself and allies itself with commercial and industrial capital. Thompson, op. cit., fn 17, page 136 45 The commercialization of cacao involved two-way traffic within the region, first to deliver the cacao to the port in Ilheus and second to supply the food and merchandise that the "fazendas" (farms or plantations) required to produce the cacao and to reproduce the labour supply. This commercial function was carried out initially through a network of commercial houses or commissaries which were located at fluvial ports, since fluvial transport was initially the only method available. Growers from the interior may have preferred to deal directly with the export houses but fluvial transport and the fluvial ports were controlled by the gentry, in particular the Sa family which was the backbone of the gentry class: The extent of the Sa holdings was described by Mahony as follows:

Anyone trying to reach Ilheus interior from the coast or vice-versa, by either land or river had no choice but to pass through territory belonging to some member of the Sa family. More importantly, all produce coming downriver from the expanding interior or merchandise purchased by residents of that interior had to pass through Sa territory as well.25

In addition to the system of two-way commerce, the mode of production depended on a credit system, without which cacao could not be planted or grown. An informal credit system, regulated exclusively by the lei do cacau, arose because formal lending institutions were late arrivals to the region and because the formal system of credit required that land ownership be secured by legal title, which we will see later was often not available to the smaller growers. Credit was required in the desbravador phase of clearing and planting because cacao trees require four or five years of care before producing fruit for the harvest. However, even established growers could not escape the need for credit on an annual basis to meet the costs of production, mainly labour power, before the cacao seeds were ready for the market. The commercial network provided a system of credit in which cacao was regularly sold naflor (while flowering) in advance of the harvest. The terms of credit placed the risk of crop failure on the grower and required that the land be offered as collateral. If a grower was left with an outstanding

Mahony, The world cacao made , fn 15, page 287. 46 debt at the end of the harvest, the land could be forfeited to the creditor. According to Angela Rolim Garcez:

In reality, the entire system [of credit] functioned against the grower (mainly the medium and small growers).

In this system of commerce and credit, the export houses stood at the top end of a chain of dependency in which the larger growers received credit from the export houses and extended credit to the smaller growers in the interior. In turn the region as a whole was dependent on a world system in which cacao was grown in various countries in Latin America and Africa and sold in the international commodity markets. The accumulation of capital on the regional scale, therefore, depended both on the quantity of cacao produced and on the price set by the international market while the accumulation of capital on the fazenda scale depended on the grower's position within this dependency chain.

The large growers, both gentry and novo rico, sought to advance as far up the dependency chain as possible. The larger growers and the export houses developed a relation of mutual dependency when the export houses acquired their own fazendas and the large growers invested in, or married into, the export houses. Guerreiro explained:

The concept of the burguesia cacaueira is intimately linked to the acknowledgement that the merchant-exporters and the large growers formed the two fractions which gave rise to the class in question. The appearance of a unified segment, with interests simultaneously in

Baiardi, op. cit., fh 7, page 104. A standard contract of sale which was introduced in the post-war period is reproduced by Baiardi at page 107. 7 Angelina Nobre Rolim Garcez and Antonio Fernando Guerreiro de Freitas, Cacau: Quase Meio Seculo de Relacoes 1930-1975 (Ilheus. CEPLAC, 1978), page 72. The original in Portuguese reads: Na realidade, todo o sistema funcionava contra o produtor (principalmente medio e pequeno produtores.

28 Mahony, The world cacao made , fn 15. The seminal study on cacao production in Ghana was written by Polly Hill: The migrant cocoa-farmers of southern Ghana : a study in rural capitalism (Hamburg: LIT, 1997) 47 production and in commercialization, was made possible through the development of the cacao economy.

Prior to the formation of the burguesia cacaueira, contention over land was carried on simultaneously with contention for control of the commercial and credit network, which in turn depended on the region's transportation system.30 Violence was characteristic of this contention and touched the lives of everyone who lived and worked in the region. This violence was carried out by private security forces or hired gunmen known as jaguncos who imposed the lei do cacau on behalf of the coronets, both in contention over land and in imposing labour control. Class conflict between the gentry and the novos ricos was at its peak in 1913 in what is now the Municipality of Itajuipe when a railway terminus was located in Sequeiro do Espinho to serve Itajuipe. Open class warfare broke out between two armies of jagungos, causing serious prejudice to the regional interest:

It is incalculable the damage that that "war" brought to the society and to the economy of the zone in which it took place.

According to Mahony:

Guerreiro, "Os Donos dos Frutos de Ouro," fn 4, section 2.1. The original in Portuguese reads:

A concepcao de burguesia cacaueira esta intimamente ligada a aceitacao de que o comerciante-exportador e os grandes produtores formaram as duas fracoes que deram origim a classe em exame. O desenvolvimento da cacauicultura possibilitou o aparecimento de um segmento unificado, com interesses na producao e no commercio, simultaneamente.

30 A network of roads — with Itabuna as its hub - ultimately resolved the region's transportation problem, but fluvial transport was initially replaced by the Ilheus - Vitoria de Conquista railway which ran from Itabuna to the port in Ilheus, with stations in the emerging commercial centers of Urucuca and Itajuipe. The Ilheus - Vitoria de Conquista railway brought the cacao crop to the port in Ilheus. Sequiero do Espinho, the site of the armed conflict, was the original terminus of a branch line which served the District of Pirangi (now Itajuipe). 31 Silva Campos, op.cit, fn 1 , page 368. The original in Portuguese reads: E incalculavel o dano que aquela 'guerra'...acarretou a sociedade e a economia da zona em que se desenrolou.

48 Whatever happened, by the time it was over plantations.. .as well as shops all over the area and especially in Sequeiro do Espinho had been reduced to ruins, commerce had ceased, the trains had stopped running, and most uninvolved people had escaped to the forest or to Ilheus.32

The regional interest could not tolerate this degree of violence because it interfered with the accumulation of capital. As a result the state government was invited in to impose the imperio de la ley (rule by law) in 1919. This event marked the consolidation of the burguesia cacaueira, whose hegemony was ensured in 1926 when the port of Ilheus gained the capacity to ship cacao directly to the world market, rather than trans-shipping it through Salvador as had been required in the past. The export houses relocated their Salvador offices to Ilheus and established sub-branches in the interior commercial centers, in this way consolidating their integration into the cacao economy. Political alliances shifted within the region so that during the New Republic (1930 to 1937) the burguesia cacaueira was able to articulate a new vision of the regional interest.

2.3 The coronets do cacau

While in the traditional historiography the coronets do cacau (cacao colonels) were the urbanized descendants of the desbravadores, in the subaltern history the coroneis were a social expression of the burguesia cacaueira. Anyone who owned a fazenda could be called a fazendeiro but the title coronel was one of social respect. According to Andre Heraclio do Rego,34 coronelismo had little to do with an official title:

Mahony, The world cacao made, fn 15, page 480 33 The social phenomenon of coronelismo occurred throughout Brazil but the coroneis of the Northeastern were unique in many ways. Eul-Soo Pang, Bahia in the First Brazilian Republic:Coronelismo and oligarchies. 1889-1934 (Gainesville: University Presses of Florida, 1978). 34 The author grew up in a family of Northeastern coroneis in Pernambuco. His recent study of the phenomenon is insightful but treats the phenomenon with more respect than it deserves: Andre Heraclio do Rego, Famille et pouvoir regional au Bresil : le coronelismo dans le Nordeste. 1850-2000 (Paris: Harmattan, 2005) 49 Un bon nombre de personnes pouvaient porter le titre de coronel: il suffisait de le gagner ou de 1'avoir achete a l'epoque ou existait la Guardia National. 35 Mais le veritable coronel etait celui qui, possedant ou non le titre, etait considere comme tel par « ses gens », par ses allies et memes par ses adversaires. Ces qualites personnelles jouaient un role peut-etre plus important dans la configuration d'un coronel que la richesse ou les bonnes relations avec les partis politiques au pouvoir.36

While Heraclio do Rego portrayed the personal qualities of the coronets as the source of their power, other authors saw coronelismo as a system of domination by force:

... the coronel exercised his influence, paternal if possible and coercive if necessary, over the poorer levels of the population, who frequently lived as agregados on the land of the local potentates.

There was a personal aspect to relations in the coronelismo system but these relations were based on ownership and control of the land rather than on charisma. As a "result of his power and fear of his vengeance,"38 cacao workers were subject to the private rule of the coronets because state law was absent:

Les travailleurs ruraux, qui etaient completement abandonnes par le pouvoir public, ne pouvaient avoir recours qu'a une seule personne, le fazendeiro, le patron.

35 The Guardia was established in 1831 and abolished in 1918: Heraclio do Rego, op. cit., fn 34, page 73 36 Heraclio do Rego, op.cit., fn 34, page 71. Here is my English translation: A great number of people could have the title of coronel: it was enough to win the title or to have purchased it during the time that the National Guard was in existence. But the true coronel was he who, whether or not he possessed the title, was considered as such by "his people", by his allies' and even his adversaries. These personal qualities played a role which was perhaps more important in the configuration of a coronel than wealth or good relations with the political parties in power.

37 Ligia Silva, op.cit., fn 20, page 258. The original in Portuguese reads: Enquanto representante do mandonismo local, o coronel exercia sua influencia, paternal se possivel e coercitivo se necessario, sobre as camadas mais pobres da populacao, que vivia frequentemente como agregada nas terras dos poderosos locais. The term agregado refers to a form of labour control to which I will return later in the chapter. 38 Heraclio do Rego, op.cit., fn 34, page 72. The original in French reads : « consequence de son pouvoir et de la peur de sa vengeance » 39 IBID, page 68. Here is my English translation: 50 The lei do cacau regulated the relation between cacao workers and the coronets but relations within and between families were at the base of social relations in the region. Heraclio do Rego suggested that the social formation in Brazil and throughout Latin America was based on family relations:

La famille est portee aux nues pour avoir ete a la base de la formation du Bresil et de toute l'Amerique latine. 40

The coroneis constructed their families as instruments of domination, to control the land and to maintain a political base in the electoral system of the Old Republic. The coroneis amalgamated their landholdings and commercial interests through marriage within their own social class and they used the Christian institution of baptism ~ the baptismal relation of padrinho-afilhado (godfather-godchild) — to construct extended family relations that crossed class lines and embraced subaltern families in a relation of dependency. The males in this relation were known as compadres, a relation which Oliveira Viana described as "the richest source of family solidarity in the hinterland of Brazil." For Heraclio do Rego the compadre relation was deeper than that of natural brotherhood because "even brothers called themselves compadres".41 The compadre relation was an instrument used by the coroneis to secure the loyalty of men of confidence (homens de confianca) who in turn served the coronel in whatever capacity he designated, including as commander of his jagungo troops.

The story of four of the region's four coronel families illustrates the relations within and between these elite families in the formation of burguesia cacaueira.

Rural workers, who were completely abandoned by public authorities, could have recourse to only one person, the fazendeiro, the boss.

40 IBID. Here is my English translation: The family is universally recognized as having been at the base of the formation of Brazil and all of Latin America.

41 IBID, page 51 . The original in French reads : La source la plus feconde de la solidarite familiale dans le hinterland du Bresil

51 Although the Revolution of 1930 purported to overthrow the rule of the oligarchy, the influence of these families continued into the Fourth Republic and their descendents appeared as respondents in the Vieira court.

The most prominent of the gentry families was the Sa family.42 The brothers Jose de Sa e Bittencourt Camara Accioli and Manoel Ferreira Camara Bittencourt e Sa were born in colonial Brazil and studied at the University of Coimbra with the father of Brazilian independence, Jose Bonifacio. The Sa family became the region's largest landowners by purchasing land that had been controlled by the Jesuits until their expulsion. 43 Throughout the 19l century they continued to accumulate land in the area surrounding the Ilheus urban center and in the fertile river valleys, including the land surrounding the fluvial port of Castelo Novo. They were known as the region's largest slave owners and they became large cacao growers through their use of slave labour. One of the brothers sired a line of coronets who controlled municipal politics on behalf of the gentry through a political party known as the Adamistas, named for the Adami family, a family of merchants which merged with a branch of the Sa family through marriage. When the Sa Adami branch of the family quarrelled with another branch over their inheritance, a judicial ruling gave the Sa Adamis ownership of several fazendas in the District of Castelo Novo and control of the fluvial port of Castelo Novo.44 By the turn of the 20th century, Coronel Domingos Adami de Sa and his brother Jose Carlos de Sa Adami were the co-patriarchs of the Sa Adami family which controlled much of the land and the commercial network in and around Ilheus.

According to Andre Ribeiro: The Sa family is one of Brazil's most traditional families, with a presence in the colony since the XVIIth century. Ribeiro, op. cit., fn 14, page 42. The original in Portuguese reads: A familia Sa e uma das mais tradicionais do Brasil, com presenca na colonia desde o seculo XVII.

43 IBID, page 47 44 Mary Ann Mahony described this contention within the Sa family, based on the court records: Mahony, The world cacao made, fn 15, page 286 and pages 444-447 52 The dominance of the Sa Adamis was challenged by Manoel Misael da Silva Tavares, who was born in the region of more humble origins and of mixed race.45 Tavares started out as the owner-operator of a mule train but was soon able to establish a commercial house in the fluvial port of Banco de Vitoria. He married into a gentry family, the Berberts, a German Swiss family that settled in the area in the early 19th century.46 While the Sa Adamis favoured the economic status quo, Tavares was committed to regional development in the spirit of the novo rico class. At the turn of the century he shifted his political loyalty from the gentry class Adamistas to the opposition Pessoistas,47 the party of the novos ricos, foreshadowing the breakdown of the existing class-based political system. As his reward, in 1905 he was awarded a commission as coronel in the 40th Calvary Brigade of the National Guard for the Camarca (Judicial District) of Ilheus.48

Tavares became known in the region as the "Rei de Cacau " (King of Cacao) but according to Mahony he may have been the "King of Caxixe " (caxixe was the regional term for land fraud, to which we will return later in the chapter):

Misael Tavares, according to popular legend, was notorious for tricking borrowers into signing promissory notes for double the amount of loans he granted. He would claim that the borrower had erred in signing the original note, crumple it, throw it away, and have a new one filled out. Later he would retrieve the note, iron out the creases, and thus have signed proof of a debt for double the amount actually lent.49

Francisco Borges de Barros, Memoria sobre o Municipio de Ilheus (Ilheus, Bahia, Brasil: Editus, 2004), page 117. The mother was Salomea Fernandes da Silva, a Tupinamba from Cururupe. Tavares's wife was also said to be racially mixed because her mother was of African descent. 7The party was named for its leader, Antonio Pessoa, who was a self-trained lawyer (rabula). The opposing gentry party, the Adamistas, was named for the Sa Adami family. The Berberts also shifted to the Pessoistas at the same time as Tavares. 48 The commission was granted by Jose Joachim Seabra, who at the time was the Federal Minister of Justice. He became governor of Bahia in 1912. 49 Mahony, The world cacao made, fn 15, page 468. 53 Despite his humble origins, by 1913 Tavares owned twenty-two fazendas, most of which were located along the line of the Ilheus-Vitoria de Conquista railway because he had invested in the construction of the railway and was able to influence its route.50 This gave him control of a network of commercial houses located along the line and a corresponding network of defaulting debtors. Through legal actions, Tavares claimed title to seventy-seven fazendas which produced over 975,000 kilos of cacao annually.51 Besides the railway, he invested in the new port facility, a bank, a hotel, private houses, a string of commercial buildings, and, in partnership with Hugo Kaufman, the region's first chocolate factory and a cacao warehousing operation next to the new port facility.

Hugo Kaufman came to Ilheus from Switzerland as the agent for the region's largest export house, Wildberger and Company. Wildberger's was established in Ilheus in 1890 and in 1903 it opened a sub-branch in Banco de Vitoria,54 where its agents encountered a branch of the Sa family. This branch had intermarried with the Steigers, an Austrian family which owned the Fazenda Vitoria with its 104 slaves and 20,000 cacao trees.55 Various members of the Sa family worked for Wildbergers, including Ernesto de Sa Bittencourt Camara, who was the company lawyer for a half century. Wildberger became the "single largest creditor in the cacao zone from 1890 to 1931" and, with the help of its lawyer, acquired considerable land from its debtors.56

Kaufman's personal ambitions conflicted with the interest of his employer so in 1910 he left Wildberger and the Adamistas to join Tavares and the Pessoistas. Kaufman acquired the Fazenda Vitoria from the Steigers and established the Companhia Industrial de Bahia-CIB as his commercial arm. In 1912 he was elected vice-president of the

50 Barros, op. cit., fn 45, page 118; Wright, op.cit., fn 2, page 113-116 51 Mahony, The world cacao made, fn 15, page 464. 52 Tavares died in Rio de Janeiro in 1938: Macedo and Ribeiro, op.cit., fn 12 , page 72 53 Wildberger's was the successor corporation to C.F. Keller and Co., which ran an import-export business in Salvador. 54 Mahony, The world cacao made, fn 15, page 422 55 IBID, page 291 56 Wright, op.cit., fn 2, page 99 54 Associagao Commercial de Ilheus (Ilheus Commercial Association) which he and others used as the institutional framework for the formation of the burguesia cacaueira.51

The Lavignes were gentry slaveholders in the 19th century, although in the 20th century they supported the Revolution of 1930 and later opposed the Estado Novo. Louis Gaston Lavigne arrived in Brazil from France with the Royal Court in 1808, but soon left Rio de Janeiro for Ilheus. He married into the Bonin family, one of the German Swiss families from the Cachoeira colony whose in-laws were the Berberts. Unlike the Berberts, however, the Lavignes remained loyal Adamistas, following the example of the family patriarch, Coronel Antonio Lavigne de Lemos, who controlled the Adamista political machine in the District of Iguape until the turn of the 20th century. The Lavignes used slave labour to open up the land along the Rio Itaipe to plant cotton, coffee, sugar and cacao.

Luis Gaston Lavigne Junior married into the Sa family and had two sons, Arturo Lavigne and Eusinio Gaston Lavigne. Every coronel family aspired to have one of its sons become a lawyer (bacharel) and Luis Gaston had the good fortune of having both

CO sons become bachareis and politicians. Arturo and Eusinio were allies of the Mangabeira family, in particular Joao Mangabeira, a lawyer from Salvador who married into the Sa family. Political alliances shifted as the burguesia cacaueira consolidated and in 1922 Mangabeira abandoned the Adamistas to become the leader of the Pessoistas. After 1930 loyalty to these parties became irrelevant as the Lavignes joined the Revolution of 1930 and the Mangabeiras joined the opposition to Vargas.59 Despite this

Barros, op.cit., fn 45, page 129 58 The story of the Lavigne family is told in Ribeiro, op.cit., fn 11, page 58 and in Macedo and Ribeiro, op.cit., fn 12, page 66. In the regional histories, Arturo and Eusinio are sometimes referred to as brothers, at other times as cousins. Sometimes Eusinio is referred to as a doctor rather than a lawyer. 59 Gustavo Falcon, Os Coroneis do cacau (Salvador: Centro Editorial e Didatico, Universidade Federal de Bahia e Edicoes Ianama, 1995), page 112 and Consuelo Novais Sampaio, Os Partidos Politicos da Bahia na Primeira Republica: Uma Politica de Acomodacao (Salvador: EDUFBA, 1999), page 168. 55 apparent divergence, Joao Mangabeira and Eusinio Lavigne shared a common vision of the regional interest.

While the old Pessoistas had looked to more effective alliances with exporters and foreign creditors to solve their problems, the Mangabeiras and the followers of the Lavignes now looked to cooperativism and mild socialist ideas as the solution.60This vision of cooperativism and "mild socialism" altered the political opportunity structure (POS) of the agrarian social movement in the cacao region, as we will see in Chapter 3.

When he identified the family as the basic unit in the formation of Brazil, Heraclio do Rego had in mind the patriarchal family structure of the coroneis rather than the families of the subaltern groups. Although subaltern family structures often mirrored the patriarchal family structure of the coroneis, they were influenced by African and indigenous family structures and by a constant struggle for survival. These subaltern families bonded together and interacted with the coroneis families through the male to male relations — agregado, compadres (explained near the start of this section), employee -- of their respective patriarchal heads.

Raimundo de Oliveira Filho and his family were typical of the families of workers who came to the cacao region from the sertao, mainly from "the triangle formed by Salvador in the south, Estancia (Sergipe) in the north, and Inhambupe (Bahia) in the west".62 Like most sertanejos, Raimundo was of mixed race ~ described in official documents as "pardo " (mulatto) -- while the burguesia cacaueira was overwhelmingly white and of European descent. Raimundo was married at the age of nineteen and

60 Wright, op.cit., fn 2, page 140. 61 JCJ 47. See Appendix A 62 Mary Ann Mahony, "Afro-Brazilians", fn 21, page 93. Raimundo was born within this triangle, in the District of Itabaianinha, in the Municipality of Itabaianinha. 63 For example, according to the Diario da Tarde, when he was charged with attempted muder in 1980, Osmar Correia Sa was described in police documents as "branco" (white). 56 moved to the fluvial port of Banco de Vitoria with his wife and parents in 1957. After seven years of temporary employment, Raimundo was finally hired at the Fazenda Vitoria, which was owned by the Kaufmans, one of the four elite families featured above. He was fired a year later and he died at the age of twenty-eight while his claim for labour rights was still in litigation. The Kaufmans argued that his death rendered the claim a nullity but his widow persisted and eventually collected compensation.

2.4 The legal culture

The burguesia cacaueira was an alliance of productive and commercial interests which set aside their differences to replace coercion and violence with the rule of law, with the goal of protecting what they deemed to be "the regional interest", that is, to promote the cacao economy. The experience of the coronets with the rule of law was based on their contention over the ownership of land in which their strategies of contention involved elements of both state law and the lei do cacau. The key elements in these strategies were caxixe (land fraud), posse (adverse possession or squatters' rights), and credit which together gave rise to a regional legal culture which eventually influenced contention in the Vieira court.65

Private family relations were significant in the development of the regional legal culture. According to anthropologist Roberto da Matta:

In 1957 the cacao region was in the midst of the crisis that led to the creation of CEPLAC, as we will see in Chapter 3. Life in the sertao was burdened by the "climatic-climactic phenomenon of repeated drought", which led Celso Furtado and the developmental nationalists to create SUDENE: Albert O. Hirschman, Journeys toward progress; studies of economic policy-making in Latin America (New York: Greenwood Press, 1968) Hirschman described the drought that peaked in 1958 as "one of the most severe ever experienced by the Northeast," at page 13-14 65 The notion of a "legal culture" was defined by Carlos Aguirre and Richard Salvatore as the distinctive manner in which a legal system may be imagined — in this case by the hegemonic burguesia cacaueira ~ encapsulating their relationship with, and attitudes towards, the law: Ricardo Donato Salvatore, Carlos Aguirre, and G. M. Joseph, eds. Crime and punishment in Latin America : law and society since late colonial times (Durham ; London: Duke University Press, 2001), page 14. In the same volume, Doug Hay commented: "The concept of legal culture, although useful as a shorthand in the way used here, is not unproblematic if pressed too far." (page 429, note 2). I use the notion in the shorthand way that Hay endorsed. 57 ...we live in a society where there exists a type of battle between the public world of universal laws and contracts, and the private universe of the family, of godparents, relatives and friends...[T]he role of friendship, of godparenthood and the logic of personal relations in general needs to be seriously studied as a basic component of Brazilian society and not treated superficially at the anecdotal level.. .66

In the cacao region, the "private universe" of the coronets do cacau revolved around the "public world" of legal title in the first three cycles of the cacao economy. According to Adonias Filho, every coronel wanted a lawyer {bacharel) in the family as a son, son-in-law or compadre because a lawyer would protect family property from caxixe (land fraud) through the rule of law:

The Coronel ...always preferred law to violence...And also, for this same reason, the lawyer is the great and indispensable collaborator. And he will do everything, for this same reason, to ensure that there is a bacharel, or lawyer, among his family members. The law, therefore — since it is in Court that all of the conflicts provoked by land disputes will come to an end — the rule of law, therefore, and not violence.67

Adonias Filho suggested that the excessive formalism of state law was the cause of caxixe and that the coronets were its victims rather than the perpetrators:

It was normal, then, that people sought to escape from such a strict judicial system through caxixe. It is precisely because he feared it, wishing to

66 Roberto da Matta, "The Quest for Citizenship in a Relational Universe," in John D. Wirth, Edson de Oliveira Nunes, and Thomas E. Bogenschild, State and society in Brazil: continuity and change (Boulder: Westview Press, 1987), pages 321-322. In da Matta's analysis, this "relational world" of the social field found expression within the juridical field, became part of the legal culture: Realistically, we know that it is almost impossible to judge a person in Brazil, for what is in the dock is a family, a kin group, a network of relations, a political party. 67 Adonias Filho, op.cit., fn 3, page 79. The original in Portuguese reads: O Coronel...sempre preferiu a lei a violencia...E, tambem por isso mesmo, e que o advogado e o grande e indispensavel colaborador. E tudo fara, aindo por isso mesmo, para que nao falte o bacharel, o advogado, entre os filhos e genros doutores. A lei, pois - ja que na Justica irao morrer todos os conflitos provocados pela disputa da terra - a lei, pois, e nao a violencia

58 avoid it ~ this caxixe — always trusting in the law, that the coronel made the lawyer his inseparable advisor.

As an apostle of the desbravador myth, Adonias Filho had an interest in portraying the coronel as law abiding and non-violent but this vision was contested by Jorge Amado who, in his novels, portrayed the coronel as violent and the perpetrator of caxixe rather than its victim. As Amado suggested, jagungo violence and bacharel fraud were both part and parcel of a successful caxixe. In Terras do Sem Fim, Amado suggested that the real victims were the sertanejo migrants who dreamed of owning their own plot of land. Here is how caxixe appeared through the eyes of Antonio Vitor, the novel's young protagonist:

-Have you heard them talk about 'caxixe'?

-They say that it is about lawyers who take other people's land.

-Along comes a lawyer with a coronel, he does a caxixe, and you have no idea what happened to the cacao trees you planted.69

The prominent role played by caxixe in the region's legal culture underlines the centrality of land ownership in the region's legal history. State law provided an efficient mechanism for the transfer of legal title from debtors to creditors, which proved to be double edged because the Vieira court later used its ability to threaten legal title to enforce its judgments, as we will see in Part III. Since gaining legal title was central to

Adonias Filho, op. cit., fn 3 . The original in Portuguese reads: Era natural, pois, que no caxixe se buscasse a saida para um sistema judiciaria tao fechado. E precisamente porque o temia , querendo evita-lo - a esse caxixe - , sempre a confiar na lei, foi que o coronel fez do advogado o seu inseparavel conselheiro. 69 Jorge Amado, Terras do Sem Fim (Rio de Janeiro: Editora Record, 1942), page 31. The original in Portuguese reads:

-Ja ouviram falar em caxixe? -Dizque e um negocio de doutor que toma a terra dos outros. -Vem um advogado com um coronel, faz caxixe, a gente nem sabe onde vai parar os pes de cacau que a gente plantou. 59 the region's legal culture and figured prominently in the enforcement of labour rights, we should consider how the state system of legal title was organized.

Brazilian land law was transplanted from Portugal. In the cacao region, the original gentry landholdings can be traced to the granting of sesmarias (traditional land grants) under the colonial system; since no sesmarias had been granted in Brazil since independence, a second source of the region's latifundio was posse (adverse possession or squatting), which involved the taking of land by force. In 1850 posse was formally eliminated by the Lei de Terras (Land Law) but this statute was never enforced. When public lands (terras devolutas) were passed to the control of the constituent state governments by the constitution of the Old Republic (1891), Bahia introduced a system of land law in which posse could be used to obtain legal title. In the cacao region, most of the coroneis acquired their land through posse, that is, by force rather than by purchase, and by 1895 virtually all of the land suitable for the production of cacao was claimed

71 through the passe of one coronel or another.

In the juridical field, posse was a malleable concept which depended on the ability of the coronel to prove possession for a period of over one year. However, the methods used by the region's lawyers to prove possession were often fraudulent, giving rise to the invention of the regional word caxixe. Mahony used primary sources to show that the coroneis were the perpetrators of caxixe rather than its victims.

The land title system was based on Bahia's land law of 1897, which allowed title 79 to public lands (terras devolutas) to be purchased or claimed through a right of posse. The system was administered by the agriculture secretariat of the state government, through an Inspectorate which was located in Salvador and had a district office in

70 The best secondary source for the history of Brazilian land law is Ligia Maria Osorio Silva, op. cit, fn 20, pages 39-40. This history is summarized in Heraclio do Rego, op. cit., fn 35, at page 28. 71 Mahony, The world cacao made, fn 15 72 Lei (estadual) 198 de 21 de agosto de 1897, regulated by Decreto 18 de 29 de Novembro de 1897. Posse was finally abolished in 1930. 60 Ilheus. Public land could also be purchased and legal title, and any encumbrances on title, could be registered in the local cartorio (registry office), with the assistance of the tabelao (notary public).74

The Inspectorate system gave rise to a widespread practice of caxixe, according to Angelina Nobre Rolim Garcez.75 An applicant was required to prove posse of over one year, pay various taxes, and pay the cost of a survey. Although the process was initiated in Ilheus, it was completed in Salvador and years or even decades could pass before title was issued. This procedure prevented small growers from obtaining legal title. According to Angus Wright:

Under the new land laws, the old families made certain of their dominance, and the state land office obliged. The first titles granted were overwhelmingly favourable to the large, established plantations, granting title for them expeditiously and without fail. As has been previously mentioned, small landowners had to wait years or even decades to gain approval of title. A perusal of the list of title applications refused by the state land officials reveals with remarkable consistency that well-known planters never had their applications brought under honest scrutiny by officials. Only in the case of conflict with another important figure would the established planter experience difficulty. During the same period, speculators and exporters were also having their day at the land office, foreclosing mortgages and settling other debts by land transfers convenient to them. The fraudulent practice in land titles and transfers well deserved the special word coined in the region to describe the phenomenon, caxixe.

Mahony was critical of Wright's assessment:

73 Mahony, The world cacao made, fh 15, page 443. The Inspectorate was called the Inspectoria Geral de Terras, Imigracao e Colonizacao and the districts were called Distritos de Medicao das Terras do Estado. Ilheus was one of eight districts and had its own inspectorate office staffed by a delegado (delegate). 74 These matters were regulated by the Civil Code of 1916. Prior to 1930, a legal debate raged over whether the sale of land by the state was a matter of civil or administrative law. 75 Rolim Garcez, Angelina Nobre, "Mechanismos de Formacao da Propriedade Cacaueira no Eixo Itabuna/Ilheus - 1890-1930," (unpublished masters thesis, Universidade Federal de Bahia, 1977), page 80 76 Wright, op. cit, fn 2, page 105 61 Wright misdates the land law, overestimates its importance for the older planter families, and underestimates both the ability of small farmers to use it and their ability to defend themselves.77

Mahony did not dispute that the system favoured the established families over the small growers but she argued that the purpose of the Bahian statute was to establish order and to open up land for settlement by small growers. The large landholders could obtain title to large tracts of land through posse but they could only purchase tracts of idle land in plots of 100 hectares or less. The statute was intended to favour small fazendas but, as Mahony put it, "it did not work" because an applicant

.. .usually needed to hire a lawyer or have powerful friends to shepherd the application through the Ilheus land agent's office and the state Agricultural Ministry. The state bureaucracy simply would not function for those who lacked connections or for claimants who could not monitor their applications constantly. Most small farmers were unable to retain such services.78

Mahony found that most of the large growers had their land surveyed and their claims submitted before 1900.79 By 1910, independent small plots had started to disappear in the cacao region while the coroneis continued to accumulate land, often in the form of a collection of small plots which were operated as a joint venture, known as a conjunto.

Although caxixe was prevalent, Mahony identified the credit system as the main source of land concentration because market forces served to expropriate the land of small growers even when they held legal title. By 1909 the region's civil courts were processing actions involving the seizure of land as a matter of routine, with the inevitable result that the land of small growers was transferred to a large grower or an export house. Most of these actions were based on the credit system even when a caxixe was involved.

Mahony, "Afro-Brazilians", fn 21, page 112, footnote 4. IBID, page 102 Mahony, The World Cacao Made, fn 15, page 444 62 A successful caxixe required a degree of official cooperation or corruption, which Mahony conceded was prevalent, but for Mahony this corruption resulted more from scarce resources than bad faith. Court officials had difficulty serving process on small growers who lived on isolated fazendas, leading Antonio Pessoa — the patriarch of the Pessoista party — to remark:

It is customary for some officials of this court to certify to notifications that they did not make.80

According to Mahony, the impact on small farmers could be disastrous:

Sometimes farmers only discovered that they had lost their land in foreclosure proceedings when the police, accompanied by the creditor and his hired guns, arrived to repossess the land.

In conclusion, the regional legal culture had the acquisition and accumulation of land as its base and the regime of land law favoured the interests of the large growers and export agents who together formed the burguesia cacaueira. In the social field ~ that is, in the actual-existing field of land ownership or the lei do cacau — various elements of state law and non-state law were imbricated in land ownership, including caxixe, posse and credit. The "private universe" of the coronets do cacau and their jagungos revolved around the "public world" of legal title, as da Matta suggested. Once legal title was arranged, if the state's scarcity of resources hindered the enforcement process, the coroneis used their jagungos to further the imperio de la ley (rule by law). With respect to the compliance model proposed by Garcia, the coroneis provided an example of ideological compliance because the land law was adjusted to what the coroneis considered good, while coercive compliance was used against the smaller growers who abandoned their claim under threat of death. The coroneis accepted the utility of state law to regulate intra-elite contention and they used the imperio de la ley instrumentally to consolidate their claims against the smaller growers.

80 Mahony, "Afro-Brazilians", fn 21, quoting Pessoa at page 105 81 IBID, page 105 63 2.5 The mode of production

Our attention can now turn to an explanation of how subaltern groups in the region fit into the social formation. The social network of rural workers depended on their relation to production. My approach is therefore to identify the different forms of grower-worker relations, or forms of labour control, which were prevalent in the region and to consider how rural workers interacted with the burguesia cacaueira within these forms of relations. Since we are dealing with productive relations, I begin with a brief description of the mode of production, which was constant throughout the region and throughout the five cycles of the cacao economy.

The cacao harvest (safra) season ran for eight or nine months, from April to December, but it involved two separate picks (colheita or colha as they were called in the region). The true harvest began in September and lasted until December or January and a pre-harvest or early harvest (temporao) began in April or May and carried through to the end of August. The period between harvests was known as the paradeiro (from parar, meaning stop) and were used for cleaning and weeding (rocagem), as were the shorter periods between picks. In the traditional method of cultivation, relatively little labour power was used during the paradeiros but during the industrialization cycle of cacao production (after 1957) the "three basic practices" of pest control, disease control and fertilization led to an increase in the demand for labour during the paradeiros.

Cacao is a fruit that grows on trees in pods of different colours, depending on the variety. The fruit ripens at varying intervals so fruit from the same trees was harvested continuously throughout the season. The harvested fruit was placed first in small piles and then moved to a large pile where the pods were cut open and the seeds extracted from the pulp. Up to this point, all of the work was performed by hand. The next step was to transport the moist cacao seeds (cacau mole) from the field to the drying shed; mules

64 were often used for this purpose. The mules and the other animals were under the care of a vaqueiro (cowboy or animal handler).

The drying phase required a skilled worker, the barcaceiro, to supervise the process. The term barcaceiro was derived from the barcaga, which was the type of drying shed most commonly found in the region. The barcaga had a retractable peaked roof made of sheet metal (in case of rain) and a flat roof underneath made of wood. The moist cacao seeds (cacau mole) were fermented for several days in boxes then dried on the flat roof in the sun; the space beneath the flat roof was used as living quarters for the single male workers. The art of the barcaceiro was to supervise the fermentation process and to judge the optimal point at which the seeds were dry enough to send to market but not so dry that that they had lost their taste and smell. As the seeds dried in the sun the workers walked on them in bare feet so that the seeds became shiny and dry and their feet became dry and calcified like old leather. During the rainy season, a prosperous grower might use an oven (estufd) instead of the barcaga to dry the seeds, in which case the job of the barcaceiro was replaced by that of the estufeiro.

The growers required a flexible workforce with workers who were capable of performing whatever job was required, in keeping pace with the rhythm of the harvest, except for the skilled jobs of barcaceiro, estufeiro, and vaqueiro which were performed by specialized workers. The supervisory structure varied from one fazenda to another. The smaller fazendeiros (fazenda owners) involved themselves directly in managing production while the coroneis preferred to live in a town or in cities — Ilheus, Itabuna, Salvador, or even Rio de Janeiro ~ leaving the management of production in the hands of an administrador (administrator). Some fazendeiros managed production themselves from town and engaged a literate or semi-literate rural worker to direct the workforce on a day to day basis and to conduct a pay parade at the end of the work week. The large fazendas had a more sophisticated management structure with a hierarchy that might include an administrador, a gerente (manager), a foreman (cabo de turno) and a fiscal

65 (inspector). These supervisors and specialized workers were referred to collectively as empregados (employees) because they were typically resident on the fazenda and paid a monthly salary.

Although the region was dedicated to the monoculture of cacao, other commodities were produced on land which was less suitable for cacao production. Rubber trees, piacava palms and coconut palms were grown on large plantations in the region according to their own labour requirements, although their workforce was interchangeable with cacao workers. The food supply was either imported into the region or grown on land which was not suitable for cacao production. Cacao workers traditionally planted food between the rows of cacao trees but this practice was discouraged during the industrialization cycle. Petty producers known as burareiros grew food crops on the periphery of cacao plantations and sold their produce to cacao workers at a weekly market. Cacao workers had few alternative sources of employment in the region because they were illiterate and lacked other skills or training. However, work in civil construction was often available, and after 1953 the state oil company known as Petrobras became active in the region and created an enhanced demand for unskilled labour. An unemployed cacao worker might also leave the region and settle in one of the favelas (shanty towns) of Sao Paulo or Rio de Janeiro.

2.6 The forms of labour control

During the Fourth Republic, Brazil's rural population became increasingly mobile, giving rise to a rural exodus and food shortages at a time when idle land was in abundance. In 1960, more than ninety per cent of Brazilian agricultural land was controlled by latifundidrios who planted no more than eight per cent of this land for crops while the rest of the land was used to graze cattle or left idle. The standard of living for a

82 Pia9ava was a type of palm tree which was used to make brooms and similar products. 83 Petrobras was established by Vargas in 1953 as a state-owned oil monopoly as the result of a political campaign around the slogan "O petroleo e nosso" (the oil is ours). 66 great part of the rural population was deteriorating, which caused a process of inter-rural migration and migration into the urban areas "where even the most precarious livelihood seems attractive compared to the insecurity and extreme poverty of life on the land..."84 By contrast, while cacao workers were part of this inter-rural and urban migration tendency, the demand for labour in the cacao region was increasing and the region continued to attract families ~ like Raimundo's family — who were escaping worse conditions elsewhere, including the droughts of the sertao.

Of Work relations in rural Brazil varied considerably in time and space, with rural workers moving from one form of labour control to another according to the flow of the harvest and a grower's self-interest. Within the lei do cacau we can identify five forms of grower-worker relations: burareiro, contratista, assalariado, diarista and empreitada. Although each form had a specific set of characteristics, they were often interchangeable from the perspective of a cacao worker.

Burareiros were petty producers or small peasants, engaged mainly in the production of food crops, while producing only a marginal amount of cacao. This was the backbone of the region's family agriculture sector, and as such, according to Frederick

Celso Furtado, The economic growth of Brazil : a survey from colonial to modern times (Berkeley: University of California Press, 1968) . 85 Caio Prado Junior, A questao agraria no Brasil (Sao Paulo: Editora Brasiliense, 1979). At page 144 he wrote: As relacoes de trabalho no campo variam consideravelmente no tempo e no espaco, em contrast com o que se da na indiistria e no comercio. At page 148, Prado wrote that the variations in owner-worker relations was "highly complex, very little studied scientifically, and practically unknown in its totality by Brazilian economists, sociologists and jurists." The original in Portuguese reads: ...altamente complexa, muito pouco estudada cientificamante, e practicamente desconhecida, no seu conjunto, por economistas, sociologos, e juristas brasileiros.

86 According to Gunder Frank: No one questions that owner-worker relations in agriculture are determined by the concentration of land ownership... various owner-worker relations are found inter-mixed all over the country, in each region, on many single farms, within many worker families; and they often change back and forth even from one growing season to another. Andre Gunder Frank, Capitalism and underdevelopment in Latin-America : historical studies of Chile and Brazil. (New York: Modern Reader Paperbacks, 1969), page 264 67 0"7 OO Engels, is the logical starting point for an analysis of an agrarian structure. The family agriculture sector also included some small peasants who were "small growers" and therefore more directly dependent on the cacao economy.89

Burareiro land was typically located at the margins of the cacao-producing areas and was generally not suitable for growing cacao. The economic function of the burareiros was to contribute to the region's food supply by selling their surplus production to larger growers or at the weekly Saturday markets which were frequented by cacao workers. This was a service to the growers because it made food available,

87 Frederick Engels, "The Peasant Question in France and Germany," in Karl Marx and Frederick Engels, Karl Marx and Frederick Engels Selected Works (Moscow: Progress Publishers, 1968), page 635: Once we have clarified in our minds our attitude to the small peasant, we have all the data needed to determine our stand relative to the other constituent parts of the rural population...By small peasant we mean here the owner or tenant —particularly the former — of a patch of land no bigger, as a rule, than he and his family can till, and no smaller than can sustain the family.

88 The expression "agrarian structure" was suggested in 1976 by Rezende as the then current usage synonym for "socio-economic structure": Gervasio Castro de Rezende, "Plantation systems, land tenure and labor supply : an historical analysis of the Brazilian case with a contemporary study of the cacao regions of Bahia, Brazil" (unpublished PhD dissertation, University of Wisconsin-Madison, 1976), page 206 89 Agricultural technicians in the region classified the region's growers according to the amount of cacau produced and the corresponding number of hectares under cultivation to cacao: Ana Maria Bianchi dos Reis, Diagnostico Socio-Economico da Regiao Cacaueira: Mao-de-obra e elementos de relacoes de producao (Ilheus: CEPLAC, 1976), page 45, and Baiardi, op.cit., fn 7, pages 84-85, 130. They classified each fazenda as a UP (Unidade de Producao or production unit), but many of the large growers owned more that one fazenda which they usually operated as a conjunto (joint enterprise). The arroba was the unit of weight used in the region, which was the equivalent of 15 kilos; a hectare is an area equal to 10.000 square meters or 2.471 acres. This classification table was as follows: Kilos Hectares @ 1500 kilos per hectare Burareiro 0-6000 0-4

Small grower 6000-22,500 4-15

Medium grower 22,500-75,000 16-60

Large grower Over 75,000 Over 60

Baiardi, op.cit., fn 7, page 99, Reis, op.cit., fn 89, page 35. 68 allowing the workforce to reproduce itself at a relatively low cost and allowing the more fertile land to be dedicated to the monoculture.91 Otherwise the region's food supply tended to be expensive and of poor quality because most food was imported from other regions and the quality of the local diet suffered as a result.92

Despite their status as landowners within the family agriculture sector, the burareiros constituted a form of labour control because of their position on the dependency chain which linked them to the world system. Burareiros were invariably dependent on a neighbouring coronel in a patron-client relation known as freguesia (neighbours). The coronel patrons supplied the burareiro clients with credit between harvests and purchased their cacao mole because burareiros and small growers could not afford to build their own drying shed. In the lei do cacau, the relation was one of dependency because the coronel demanded loyalty in exchange for his patronage. This dependency extended to working in the cacao harvest because the burareiros, or at least the adult males, hired themselves out during the harvest season to supplement the family income, and in this sense were interchangeable with cacao workers. The burareiros were paid at lower rates than other cacao workers because they were tied to their land and to this relation of dependency. Despite the privilege of owning their own land, their standard of living was often no better than that of a landless worker.93 After 1964, many

91 Baiardi, op.cit., fn 7, page 99, Reis, op.cit., fn 89 page 35, Rezende, op.cit., fn 88, page 90 92 According to Guerreiro: It was considered a luxury for a worker to acquire fresh meat and milk was exclusively for the landowner. Guerreiro, Os Donos, fn 4, section 2.3.1. The original in Portuguese reads: A acquisicao da carne verde pelo trabalhador era considerada um luxo e o leite uma exclusividade do proprietario. The amount of food imported into the region rose steadily after 1926 and in some years constituted over 70% of all goods delivered to the docks in Ilheus, according to Guerreiro's calculations.

93 Baiardi, op.cit., fn 7, page 97-98 and 112. The freguesia relation created a dependency for both burareiros and small growers who produced cacao as a cash crop. Most small growers did not own a drying shed so they sold their cacau mole (moist cacao) to a large grower who would dry and sell it as his own product. The small growers also lacked a means to transport their cacao to a market so they sold it indirectly through the large grower who re-sold it with his own cacao at a higher price. Baiardi found that 69 small peasants in Bahia lost even this privilege of owning their own land when the military's agrarian policy opened up agricultural production to foreign agri-business 94 interests.

The family agriculture sector is also the logical starting point for an analysis of gender relations in agriculture. In the family agriculture sector the economic role of women was hidden by patriarchal structures in which the male was considered to be the head of the household. In the patriarchal structure domestic work was considered to be light work and the domain of the women while field work was considered to be heavy work and the domain of men. As a result, when women did field work they were considered to be helpers since the work they did was that of the male. Brazilian feminists critiqued the dichotomy between domestic work and field work (casa e rogadd) and between light work and heavy work, noting that:

The work is considered light according to who is carrying it out [women or men] and not by the nature of the work itself.

the price paid to small growers was only half of what the export houses paid to the large growers. The small growers required credit to survive until the end of the harvest season so they sold their crop na flor (while flowering) at a price which averaged only 52% of the price paid for cacau pronto ("ready cacao" or dry cacao beans). They had no access to the formal lending institutions if they did not hold legal title so they depended on the freguesia relation for credit and paid "usurious" interests rates as a result. Baiardi, op.cit., fn 7, page 101-109 94 The story of the military's agriculture policy and the uprooting of petty producers in Bahia is told by Antonio Dias Nascimento in "Peasant Social Movements and Rural Workers' Trade Unions in Bahia (1972- 1990)" (unpublished PhD dissertation, University of Liverpool, 1993), and by Gervasio Rezende in Rezende, op. cit., fn 88. 95 Even Engels appeared to accept this notion in the passage quoted above in fn 87. The Civil Code of 1916 designated the husband as the head of the family (Art. 233) and deprived the wife of legal capacity (Art. 6). The Civil Code was modified in 1962 to give married women legal capacity but husbands maintained their position as head of the househhold: Lei No. 4.121 de 27 de agosto de 1962. 96 Miriam Nobre et al, ed., Genero e Agricultura Familiar (Sao Paulo: SOF, Cadernos Sempreviva Sempreviva Organisao Feminista, 1998), page 17. 97 IBID, page 19. The original in Portuguese reads: O trabalho e considerado leve por quem o executa, e nao pela natureza do trabalho em si.

70 Studies of family agriculture that use gender as an instrument of analysis are quite recent in Brazil, but Miriam Nobre borrowed from studies in other countries to argue that the problem was both economic and cultural. She showed that when the husbands absented themselves to work for wages the wives did the husbands' work on the family plot but were thought to do so "on behalf of the male". It was the cultural aspect of the problem that prevented women from achieving equality through their labour:

In practice, the wives of farmers never take the place of their husbands in the family hierarchy, even when they take over their work and obtain legal status before the entities which regulate the agricultural profession... [T]he role of women in production is not the determinant in the redefinition of her position in the family or in society, but it is the ideology which cements the hierarchical relations between genders.98

The experience of burareiro women was consistent with this feminist analysis because the forms of labour control in the lei do cacau tended to reproduce the patriarchal notions of coronelismo and the family. Women played a significant role in the cacao economy but their labour was often invisible because they were thought to be working on behalf of their husband or companheiro (male companion).99 This relation between the patriarchal family and forms of labour control is considered further in Part III, the case study of the Vieira court.

The contratista was a form of labour control which had a common social origin with that of the burareiro because contratistas and burareiros shared the ambition of owning their own plot of land, although the contratista was virtually extinct by the time of the Vieira court. The region's agricultural technicians used the following definition:

IBID, page 22. The original in Portuguese reads:

Na pratica, as esposas de agricultores nao tomam jamais o lugar dos seus maridos na hierarquia familiar, mesmo que elas os substituam no trabalho e obtenham um estatuto legal junto as entidades que regulamentam a professao de agricultor...[0] papel da mulher na producao nao seria o determinante para a redifinicao da sua posicao na familia ou na sociedade, mas sim a ideologia que cimenta as relacoes de hierarquia entre os generos. Reis, op.cit., fn 89, page 44. 71 The term contratista designates, in the history of the cacao region, the manual labourers with whom the landowner formalized, in the cartorio (registry or notary office) a contract pursuant to which this worker promised to clear the forest, prepare the land, plant the cacao trees, and nurture them for the length of the contract, generally from three to four years. During this time period, the contratista has the right to plant, between the rows of cacao trees, crops for his subsistence. At the end of the contract, he is owed a payment (the value of which is stipulated at the beginning of the contract) for each unit of cacao planted.100

This definition raises a series of questions. The first question was why the contratista contract was registered in the cartorio. The logical answer is that this was done to protect an interest in the land. Since legal title could be gained through posse, there was a risk involved in allowing the contratista to live on the land for the duration of the contract, to plant cacao and to grow his own food. The landholder was able to minimize or eliminate this risk by depositing a written contract in the cartorio in which the contratista acknowledged the landholder's prior claim.

The second question is how the contratista survived during the contract period if payment was reserved until the end of the contract, a period of up to four years. Part of the answer is that he was able to plant food crops for his own consumption between the rows of cacao trees. However, the contratista's other material needs were met through the credit system. That is, the landholder advanced in-kind payments as a form of credit during the lifetime of the contract, subject to an accounting at the end of the day. This credit instrument was known as the barracao (meaning literally a large shop or store), an instrument that remained in use at the time of the Vieira court, as we will see in section 10.3.

Reis, op.cit., fii 89, page 40, footnote 1. The original in Portuguese reads: A denominacao 'contratista' designa, historicamente na regiao cacaueira , o trabalhador bracal com quem o dono da terra formaliza, em cartorio, um contrato pelo qual se obriga este trabalhador a derrubar a mata, preparar a terra, plantar os cacaueiros e acompanhar a cultura pelo prazo do contrato, geralement de tres a quatro anos. Neste periodo, o contratista tem o direito de plantar, entre os cacaueiros, cultivos para sua subsistencia. No final do contrato, cabe-lhe um pagamento (cujo valor e stipulado no inicio do contrato) por unidades de cacaueiros plantados. 72 The third question is whether or not the contract price was in fact paid to the contratista at the end of the contract. The contratistas were the sertanejos and former slaves from the Reconcavo, most of whom were illiterate, impoverished and non- white.101 It was a matter of common knowledge in the region that registering the contract in the cartorio was of no benefit to the contratista. The contratista was tied to his contract for its duration because he was owed nothing until the contract was completed; in addition, the jagungos prevented a contratista from quitting if he was in debt to the landholder for the credit advanced to him during the life of the contract. At the end of the contract, payment could be denied for various reasons. Not surprisingly, it was widely believed in the region that the landholders cheated in their accounts in order to deny payment at the end of the contract. Even worse, if payment was made it was recovered shortly thereafter by the landholder' sjagungos who left the contratista dead by the side of the road. Finally, the contratista could be the victim of a caxixe, as happened in one of the stories told by Amado.

The final question is why the contratista form became extinct. The most compelling reason is that it outlived its usefulness once the expansion of the cacao economy peaked and most of the suitable land had already been cleared.103 According to Baiardi there were other factors:

Competing for the disappearance of the figure of the contratista were the contention between the owner-capitalist and Labour Justice which treated the contratista as a salaried worker to protect his rights...and the reduced absenteeism of the latifundiario-capitalist who now supervised the planting phase.

This conclusion is drawn from the following secondary sources which attempt to trace migrations into the region: Mahony, "Afro-Brazilians", fn 21; Fraga Filho, op. cit, fn 19; Cunha, op. cit., fn 19. 102 Jorge Amado, Sao Jorge Dos Ilheus (Rio de Janeiro, Editora Record, 1944). 103 Reis, op.cit, fn 89, page 40. 104 Baiardi, op.cit., fn 7, page 71. The original in Portuguese reads: Concorreram para o desaparecimento da figura do "contratista" as pendencias do proprietario- capitalista com a Justica do Trabalho que, para fins de reconhecimento de direito, considerava o 73 The fact that Baiardi cited the need to supervise the planting phase is of interest because it reflects a new awareness on the part of the region's growers during the industrialization cycle that productivity could be increased through quality control rather than merely by clearing more land. Baiardi also cited the influence of Labour Justice in the region and the fact that Labour Justice undermined the contratista form by treating the contratista as a rural worker within the meaning of the ETR. This observation serves to underline the centrality of the legal form and shows that some forms of labour control were incompatible with the legal form of the rural worker.

The historical relevance of the contratista form is that an understanding of the contribution of the contratista to the cacao economy undermines the desbravador myth, that is, the belief that the wealth of the regional elite was the result of their own labour. In addition to the slave labour used by the gentry class, contratistas, rather than desbravadores, cleared and planted most of the land in the cacao region.

The improbability of the desbravador myth is easily proven. Agricultural technicians calculated that it would take an average of 183 person-days of manual labour to clear and plant one hectare (2.47 acres) of cacao. At that rate a worker could clear and plant only two hectares a year. Since a large grower owned over sixty hectares of cacao trees (see footnote 89), it would have taken a desbravador, working alone, over thirty years to clear and plant a large fazenda, and even medium growers would have required at least eight years to clear and plant their land. The clearing and planting was thus much more likely done by contratistas than a single desbravador. The contratista ambition was to accumulate enough capital to become a small grower, but as Mahony suggested, this ambition was frustrated by the credit system and caxixe.

While the burareiro and the contratista shared the ambition of land ownership, the other forms of labour control used in the region promised no more than subsistence

"contratista" assalariado...como tambem a reducao do absenteismo do latifundiario-capitalista que atualmente supervisiona a implantacao da lavoura. 74 wages. The traditional image of a cacao plantation at the turn of the century closely resembled the Casa-grande e senzala105 slave world of Northeastern agriculture:

It was the time of the agregados, of the house servants, of the "men of confidence" (jaguncos), available at any time to perform tasks related or not to activity which was directly productive.

The agregado was an early form of labour control from which various other forms evolved. The word agregado referred generally to the relation between a landless peasant and a latifundidrio in which the former acknowledged the latter's rights of ownership while working primarily for his own family's subsistence and secondarily to assist the latifundidrio. As the latifundio became dedicated to the monoculture of cacao, the agregado^ priorities were reversed so he worked primarily on the fazenda's cacao crop and secondarily for the family's subsistence. The agregado was transformed into an assalariado, that is, a worker who was resident on the fazenda and was paid a monthly salary. 77% of cacao workers lived on the fazenda at the time the Vieira court was established (1964) but by 1980 the percentage of cacao workers resident on the fazenda had declined to 20%,' 7 reflecting a general trend in rural living patterns in Brazil as workers moved off the land and into villages and towns. While at the outset of the period of the Vieira court workers residing on the fazenda had on average 0.5 hectares available to plant for their family's own consumption, by 1980 this privilege had been

Gilberto Freyre, Casa-grande & senzala: Introducao a historia da sociedade patriarcal no Brasil-1 (Rio de Janeiro: Editora Record, 2001). 106 Reis, op. cit., fh 89, page 39. The original in Portuguese reads: Era o tempo dos 'agregados', das 'crias de casa', dos 'homens de confianca do patrao', disponiveis a qualquer tempo para tarefas ligados ou nao a atividade diretamente produtiva.

107 Baiardi found in 1980 that 20% of cacao workers lived on the fazenda, down from 77% in 1963: Baiardi, op.cit., fn 7, page 83 108 This trend was studied in Pernambuco by Ligia Sigaud in relation to labour rights: Lygia Sigaud, Os clandestinos e os direitos : estudo sobre trabalhadores da cana-de-acucar de Parnambuco (Sao Paulo: Livraria Duas Cidades, 1979) 75 lost because the "three basic practices" (pest control, disease control and fertilization) discouraged the planting of food crops between the rows of cacao trees.109

Residing on the fazenda meant that a worker's entire life was dominated by the coronel and his empregados, a situation which many workers tried to escape once the region's transportation system developed and fazenda life became less isolated. However, the coronets were eager to maintain their workforce, especially in the harvest season, and many coroneis relied on coercion for this purpose. Although there was no formal provision of state law to legitimate debt bondage, it appears that the coroneis used the credit system to maintain their workers in debt and their jagungos to ensure that the workers would not quit and leave their debts behind. In The Golden Harvest ~ Sao Jorge dos Ilheus was the original title in Portuguese —Amado depicted the use of debt bondage as widespread:

How many times had he planned to run away, leave those lands, light out into the wide world far from his work among the cacao trees? But, like all the plantation workers, he always remembered the beating Ranulfo had suffered when he tried to run away. He had been caught in Ferradas and whipped in front of all the workers, assembled especially for the purpose. Colonel Federico was there too, and Tiburicio's riding whip went to work on the man's back. Afterwards the colonel said:

"Let this be a lesson to all of you not to try to rob other people...Workers in debt got to pay up 'fore they can leave..."

Who wasn't in debt?...110

Amado's depiction is fictional,111 but Roy Nash visited the region in 1926 and reported that debt bondage, which he referred to as peonage, was widespread.112 Debt

Reis, op.cit., fn 89, page 40. Article 41 of the ETR required a separate contract for in kind payments so the privilege of growing one's own food was in addition to the minimum age. 110 Jorge Amado, Sao Jorge dos Ilheus. fn 102, page 95. 111 Unlike some other Latin American novelists, Amado never claimed that his stories were true: I do not know if this story is true or not, I only know that it is beautiful. 76 1 1 -J bondage continues to be a problem in various isolated parts of rural Brazil but it did not appear as an issue in the claims brought before the Vieira court and there is no evidence that the problem was widespread at the time of the case study. A trace or imprint of debt bondage remained in the form of the barracdo (fazenda store) which the coronets used to implement a truck system, as we will see in section 10.3.

In the claims brought before the Vieira court, wages were usually paid by the day and rarely by the month. Although workers paid a didrio (by the day) were generally considered to be assalariados, they were also referred to as diaristas, which is the form of labour control used here for analytical purposes. It is difficult to determine when the transition from monthly to daily wages took place in the cacao region, but the introduction of the minimum wage in 1940, considered in section 10.3, provided an incentive for growers to pay by the day because a daily wage was only 1/30 of a monthly salary and the minimum wage could be paid by the month, day or hour.114 A further incentive was that monthly wages were payable in full even if a worker was absent during the course of the month while diaristas were only paid for the days they actually worked. Diaristas were usually paid at a Saturday morning pay parade and then headed to the local weekly market or into town for a weekend of revelry.

Quoted in Antonio Pereira Sousa, Tensoes de Tempo: a saga do cacau na ficcao de Jorge Amado (Ilheus, Bahia, Brasil: Editus, 2001). 112 Roy Nash, The conquest of Brazil. (New York: Biblo and Tannen, 1968), section 1.6. Nash dedicated his book to the feminist Berta Lutz. 113 Brazil's Ministry of Labour continues to campaign against forms of labour control that resemble slavery through its Grupo Especial de Fiscalizacao Movel. For a description of this ongoing campaign, see the Ministry's website. For a recent study of the modern phenomenon of debt bondage in Brazil, see Mauricio Pessoa Lima, O Trabalho em Condicoes Analogas a de Escravo no Brasil Contemporaneo (Porto Alegre: Forum Social Mundial, 2002); Martins, Jose de Souza, "The Reappearance of Slavery and the Reproduction of Capital on the Brazilian Frontier," in Tom Brass and Marcel van der Linden, Free and unfree labour : the debate continues (Bern, Switzerland ; New York: Peter Lang, 1997) 114 If paid by the day, the minimum daily wage was 1/30 of a monthly salary although the normal work week was six days a week or a maximum of 26 days per month, making it cheaper to pay by the day. Moreover, we will see later that the normal work week in the cacao region was reduced to five days after a paid weekly day of rest was legislated in 1949:Lei No. 605 de 5 de Janeiro de 1949, which specifically included rural workers, except for parceiros. The effect of the statute was to reduce the maximum number of working days in a month to twenty-two, based on the five day week. 77 The productivity of the assalarido and the diarista was maintained by a coercive form of supervision. However, an alternative form of labour control was developed in which material incentives were substituted for supervision. This form of labour control was known as the empreitada, from the word empreito, which was a labour contract based on either a defined task (tarefa) or on piece work; the contracted worker was known as an empreiteiro. According to Judge Vieira, the regional usage of the term empreitada was a misnomer or localism (denominagdo corriqueird) because it referred to a task or piece work whereas elsewhere in Brazil an empreitada was a labour contract in which the contractor, referred to as a gato (cat) hired others to do the work.115 In the cacao region gatos contracts were rare because of the relatively small size of the workforce and out of a concern for quality control.116 The cacao empreiteiro worked alone or enlisted family members to work on his empreito. Experienced cacao workers preferred the empreitada because they could earn more by working at their own pace and without the oversight of a "slave driver" foreman. The fazendeiros were ambivalent about the empreitada because the mode of production depended on a degree of quality control at certain key junctures of the harvest: judgment was required in the picking phase, to gauge the ripeness of the individual fruit, and in the drying phase, when the fermentation and drying required an experienced barcaceiro. Although the industrialization cycle inaugurated a new era of quality control, the traditional task of cleaning and weeding could be still contracted as a tarefa (task), which regional custom defined as the cleaning of an area measuring 66 meters by 66 meters;"7 extracting the cacau mole from the ripe pods and delivering it to the barcaga could be assigned as piece work, with payment based on the number of boxes of cacau mole delivered to the barcaga.

115 JCJ 78 . See Appendix A. 116 Most workers were hired by word of mouth or travelled from one fazenda to another looking for work, while Mahony described a hiring system in turn of the century Ilheus which resembled a slave market: Mahony, The world cacao made, fn 15. 1 7 This unit of measure was defined by Mahony as 30 bracas by 30 bracas; a braca equals 2.2 meters. 78 The ambivalence of the fazendeiros to the empreitada and the preferences of experienced cacao workers gave rise to interchangeability between these forms of labour control so that a cacao worker could be a diarista during one phase of the harvest and an empreiteiro during another phase. 67% of cacao workers worked consistently in the same form of labour control ~ diarista, assalariado or empreitada — while 33% moved back and forth from one form to another. Many workers were also interchangeable from assalariados to diaristas; probably these were resident workers who were paid as diaristas or empreiteiros during the harvest and as assalariados during the offseason.

In 1980 Baiardi discovered that the use of the empreitada form had increased ten­ fold from 1972 so that by 1980 over 40% of cacao workers worked as empreiteiros only. According to Baiardi, the fazendeiros used the empreitada form to undermine labour rights, in particular the eight hour day and the payment of overtime premiums, while workers responded by working faster or by working a longer day:

A specific task (tarefa) which in average conditions ought to require two person-days in an eight hour day, through the empreitada form could take 1.5 person-days for the simple reason that the worker feels pressured by the prospect of earning more money.

In 1972 this interchangeability was quantified by CEPLAC: Reis, op.cit., fn 89, page 43, quadro 21. The results showed that while 33% of cacao workers were interchangeable, 67% were not:

not interchangeable Diaristas assalariados empreiteiros 67% 57% 6% 4%

interchangeable Day,month or empreito Day or month other 33% 22% 7% 4%

" Baiardi, op.cit., fn 7, page 82. The original in Portuguese reads: Uma determinada tarefa que para as condicoes sociais medias deveria exigir dois homens/dia em uma Jornada de oito horas, atraves da empreitada pode levar a 1,5 homem/dia pelo simples razao de o trabalhador sentir-se pressionado pela perspectiva de maiores ganhos.

79 Baiardi's analysis may have been faulty because an empreiteiro often used family members as helpers so that the work of wives, companheiras and children was often invisible. From the perspective of Labour Justice the centrality of legal form is evident because if the empreiteiro and his helpers fell within the definition of rural workers they were all entitled to the full range of labour rights.

There is a sad epilogue to this analysis of forms of labour control because after 1989 a plant disease known as vassoura de brouxa (witch's broom) invaded the region and decimated the crop. Most of the fazendas were abandoned and those that continued to produce cacao switched over to a form of labour control known as parceria (share cropping) which was common throughout the rest of Brazil but almost unknown in the cacao region prior to 1989. Today (2009) in the region cacao is produced by meieros, a specific form of parceria in which the cacao worker keeps one half of the proceeds from the sale of the crop and the landowner keeps the other half.

2.7 Concluding Chapter 2

This completes the first of three chapters in which an interactional approach is used to study the agrarian social movement, containing in this chapter an analysis of the social networks within which workers were already embedded in the cacao region. The chapter began with an analysis of the regional elite known as the burguesia cacaueira, showing that this elite was a composite class in which gentry, a nouveau riche and commercial interests joined in the protection of the regional interest, which they defined as the cacao economy. The image of a chain of dependency was used to illustrate the manner in which the export agents and the large growers took advantage of the region's commercial and credit system to dominate relations of production and to show that the

Reis, op.cit., fn 89, page 45. In 2007 I was advised by FETAG activists that most cacao workers now work as meieros because of the problem with vassoura de bruxa (witch's broom). A meiero is a parceiro who splits the proceeds of the crop equally with the landowner. 80 cacao economy in turn was dependent on the international market where the export price of cacao was determined.

Within the burguesia cacaueira, I identified the coronets do cacau as the large growers who dominated social relations through their wealth and through their extended family relations. The domination of the coronets grew out of contention over land, characterized by strategies of caxixe, posse and credit. They used coercion ~ their jagungos — and credit to extend their domination in the social field and in the juridical field their bachareis used caxixe and debt to transform posse and credit into legal title. With respect to contention over land, the coronets recognized the utility of the rule of law because state law was adapted to suit their purposes; this provided an example of ideological compliance, while the small growers complied as a result of coercion. This contention over land law gave rise to a regional legal culture which the Vieira court confronted, as we will see in section 8.6.

The discussion then turned from the elite to the subaltern groups, beginning with a description of the mode of production. I identified the five forms of labour control used by the lei do cacau prior to the establishment of the Vieira court: burareiro, contratista, assalariado, diarista and empreitada. Of these, only the diarista and empreitada forms appeared in the Vieira court.

The burareiro was a land-owning peasant and as such did not fit within the legal form of the rural worker, although burareiro is identified as a form of labour control because of its position on the dependency chain and because burareiros were often interchangeable with cacao workers. Burareiro family structures were considered in the context of the family agriculture sector to introduce the notion of invisibility with respect to the economic role of women in agriculture and the cultural notion that women worked as helpers in work that belonged to their husbands or companheiros.

81 The contratista form was rare at the time of the Vieira court, for reasons which included its incompatibility with the legal form. The historical significance of this form is that it exposes the desbravador myth and it explains the origins of the barracao, a credit instrument which was later used to construct a truck system, as we will see in section 10.3. The same credit instrument was used to construct a form of debt bondage or peonage which was commonplace in the third cycle of the cacao economy; debt bondage was marginalized or eliminated in the cacao region by the time of the Vieira court.

The assalariado form involved the payment of monthly wages and was rarely found in the Vieira court, perhaps because the relation between the assalariado and the coronel was not conducive to contention in the juridical field. In any event, it is clear that the diarista form in which workers were paid by the day, at the end of what was typically a five day week, was dominant at the time of the Vieira court and that the relation between the diarista and the fazendeiro was less personal than that of the assalariado.

Diaristas were often interchangeable with the empreitada form which involved piece work or payment for a specific task (tarefa) and came to be used increasingly as an instrument to avoid liability for labour rights. Within the empreitada the work of women was often invisible because they were seen as helpers on work that belonged to their husbands or companheiros.

In the case study, therefore, only two of the five forms of labour control considered in this chapter appeared regularly ~ the diarista and the empreitada— while the three remaining forms -- burareiro, contratista and assalariado — were virtually absent from the claims filed in the Vieira court.

82 Chapter 3: The political opportunity structure

3.1 Introduction to Chapter 3

This is the second of three chapters involving an interactional approach to the study of the agrarian social movement. This chapter considers the political opportunity structure (POS) of the political regimes within which the agrarian social movement operated. In section 1.7 I introduced the argument that non-compliance with the ETR was attributable to three fatcors, one of which was the change in policial regimes brought about by the militay coup in 1964. This chapter will demonstate the differences between the political opportunity structure available to the agrarian social movement both before and after the coup, explaining how the change in political regimes contributed to this non-compliance.

As we saw in Chapter 1, the starting point for this study of the agrarian social movement is the Revolution of 1930, which led to the creation of a liberal state known as the New Republic. The political regime changed in 1937 to form the Estado Novo dictatorship, followed by a process of redemocratization and a return to a liberal state known as the Fourth Republic in 1946.1 It was during the Fourth Republic that the agrarian social movement campaigned for agrarian reform (labour rights and land reform). The campaign for labour rights was successful to the extent that the ETR was enacted in 1963, and a radical land reform seemed imminent, until the political regime changed in 1964 and the liberal state was again replaced by a dictatorship. The end point of this study is 1973 when the ETR was repealed by the dictatorship.

This period is sometimes referred to as Brazil's third republic but the term "fourth republic" was was used by Edgar Carone and seems more apt: Edgard Carone, A Quarta Republica. 1945-1964 (Sao Paulo: Difel, 1980). 2 To bring the chronology up to the present (2009), the dictatorship was replaced by a civilian government in 1985, followed in 1988 by a new constitution and a return to a liberal state. 83 The chapter begins with a discussion of "developmental nationalism," a political movement whose adherents united around a programme of reformas bdsicas (basic reforms), of which agrarian reform was part. This discussion is an attempt to locate the ETR and Labour Justice within the notion of the developmental state and within the context of the apparatuses of the developmental state in the cacao region. Although the burguesia cacaueira maintained its regional hegemony during the Fourth Republic and during the military regime which followed, it lacked political influence within the Bahian state government and within the central government commensurate with the economic importance of the cacao economy to both the state and central governments. As instruments of the central state, the ETR and the Vieira court were able to challenge the private rule of the coronets do cacau.

The campaign for labour rights in the cacao region began after the Revolution of 1930 when improving the plight of cacao workers was first perceived by a segment of the elite as being in the regional interest. The campaign entered a hiatus during the Estado Novo. When it resumed after redemocratization, the POS of the Fourth Republic allowed a national campaign to flourish as the agrarian social movement grew and the developmental nationalists increased their control of state power. However, the POS contracted sharply after the coup in 1964 and the agrarian social movement was brought to a halt.3

The thesis of "populist unionism" has been used to question the authenticity of Brazil's union movement during the Fourth Republic, but more recent studies have emphasized the contentious strategies of the PTB-PCB alliance and the participation of

3 For the political history of the military regime, see Maria Helena Moreira Alves, State and opposition in military Brazil. (Austin: University of Texas Press, 1985), and Thomas E Skidmore The Politics of Military Rule in Brazil. 1964-85 (New York: Oxford University Press, 1988). For a collection of critical essays marking the 40th anniversary of the 1964 coup, see Martins Filho, Joao Roberto. OGolpeDe 1964 e o Regime Militar : Novas Perspectivas. (Sao Carlos: Ed UFSCar, 2006). For an interesting account of the role of the U.S. in supporting the coup, based on primary sources, see Marcos Sa Correa, 1964 Visto e Comentado Pela Casa Branca (Porto Alegre: L&PM, nd). 84 rank and file members in the union movement. Rural unionism was similarly authentic, although the enactment of the ETR led directly to the formation of many official union structures which lacked a substantive membership base.5 The agrarian social movement was divided into two branches ~ the Ligas Camponesas and the rural unions ~ and its leadership was divided into various competing camps, including the PCB (Brazil's original communist party) and the Catholic Church. Within a broad social movement the Ligas worked with the PTB-PCB alliance towards the formation of a "worker-peasant alliance,"7 taking advantage of the political opportunity structure provided by the developmental nationalists. The PCB was active in organizing rural unions throughout the country and enjoyed significant influence within the Ligas Camponesas, while the national leader of the Ligas, Francisco Juliao, advocated for a peasant revolution with Cuba as its model.

The influence of the PCB and Juliao within the agrarian social movement was countered by that of the Catholic Church. Although the church hierarchy opposed the organizing efforts of both the Ligas and the PCB, church activists were themselves divided as "moderates" and "progressives." The church hierarchy's anti-communism

4 See section 1.2. The Fourth Republic was often referred to in the past as the "populist era" or the "populist republic" until the trabalhista thesis of Angela de Castro Gomes won widescale acceptance. Adriano Duarte and Paulo Fontes argued that the trabalhista thesis was itself too focused on working lives in the formal sector and ignored the day to day lives of the working class in their neighbourhoods and communities: Adriano Duarte and Paulo Fontes, "O Populismo Visto Da Periferia: Adhemarismo e Janismo Nos Bairros Da Mooca e Sao Miguel Paulista", in Cadernos AEL: Populismo e Trabalhismo. v. 11. n.20/21 (Campinas, Sao Paulo, Brasil: Universidade Estadual de Campinas, 2004). The theory of populist unionism may be attributed to Francisco Weffort, a founder of the workers party (PT) who abandoned the party to serve as the Minister of Culture in the first government of Fernando Henrique Cardoso (1994). For example, see Francisco Correa Weffort, Los origenes del sindicalismo populista en Brasil: la covuntura de la posguerra (Lima: Taller de Estudios Politicos, Programa Academico de CCSS, Universidad Catolica del Peru, 1975). For an accessible critique of Weffort's theory of populism, see chapter 1 of John D. French, The Brazilian workers' ABC : class conflict and alliances in modern Sao Paulo (Chapel Hill: University of North Carolina Press, 1992). 5 For a convincing argument that rural unionism in the state of Sao Paulo was "authentic", see Cliff Welch, The seed was planted : the Sao Paulo roots of Brazil's rural labor movement. 1924-1964 (University Park, Pa.: Pennsylvania State University Press, 1999). 5 Partido Communista do Brasil, changed to Partido Communista Brasileiro in 1962. 7 Florencia E. Mallon, "Peasants and Rural Laborers in Pernambuco, 1955-1964," Latin American Perspectives 5.4, (1978): 49-70. 85 reflected the political dynamic of the world system. In world history, the time of the Fourth Republic was characterized by the Cold War. In Latin America the seminal event of the Cold War era was the Cuban revolution, to which the U.S. government responded by financing a regional development programme known as the Alliance for Progress.8 The Cold War ideology of anti-communism was used instrumentally by the Brazilian generals to gain support for their coup, and a split developed within the agrarian social movement along anti-communist lines, the effect of which was acute in the cacao region where the proponents of anti-communism led the rural unions away from a strategy of contention and into a position of support for the coup. The forces of anti-communism within the church gained the support of the Alliance for Progress, while the church progressives ~ foreshadowing the liberation theology movement — maintained an informal alliance with the PCB and the Ligas.

3.2 A dependency approach

Although the Revolution of 1930 led to the creation of a liberal state, the revolution itself was anti-liberal in the sense that Vargas promoted state intervention in both social and economic issues. Various ideologies competed for Vargas's attention, including the authoritarian positivism of Castilhismo,9 the fascism of the Integralismo, and the scientific racism of his colleague Oliveira Viana. By 1937 Vargas had settled on

For an insider's version of the Alliance for Progress and its founding documents, see Lincoln Gordon, A new deal for Latin America : the Alliance for progress (Cambridge: Harvard University Press, 1963); for a more critical assessment of the alliance's accomplishments, see Jerome Levinson and Juan De Onis, The Alliance that lost its way : a critical report on the Alliance for progress (Chicago: Quadrangle Books, 1970). 9 Julio de Castilhas was an important political figure in Vargas's home state of Rio de Janeiro who was a follower of the positivist Auguste Comte. Castilhas's political philosophy was authoritarian and he favoured state structures like those of corporatism. His thought influenced Vargas and other participants in the Revolution of 1930, such as Lindolfo Silva who was the first Minister of Labour. Castilhian positivism should not be confused with legal positivism which was influential in Brazilian legal circles throughout the 20th century. In Brazilian legal circles positivism is given a meaning which is similar to formalism. 10 For a discussion of the relation between labour law and scientific racism in the thought of Oliveira Viana, see Jeffrey D. Needell, "History, Race, and the State in the Thought of Oliveira Viana," The Hispanic American Historical Review 75.1 (1995): 1-30. 86 an authoritarian corporatist approach which used the RSA (Repressive State Apparatuses) to suppress communism while at the same time rejecting the extremes of fascism and racism embraced by European dictatorships. Despite the repression of the Estado Novo, however, the PCB re-emerged during the redemocratization process and joined forces with the trabalhista followers of Vargas to promote developmental nationalism during the Fourth Republic.1'

The origins of developmental nationalism lay in the redemocratization process which began in 1942, when Brazil joined the allied cause in the Second World War. In response to the anticipated return of the liberal state, Vargas and his followers proposed trabalhismo as an alternative to the development theory of "modernization" which was proposed by the U.S. and supported by a "pro-modernization" opposition on the political right. The notion that "development" was the universal goal of economic activity went unchallenged. In order to assist in the development of Latin America the United Nations established its Economic Commission for Latin America (ECLA) in Santiago de Chile in 1948. Economists from ECLA — better known by its Spanish and Portuguese acronym CEPAL13—articulated a development theory which was an alternative to "modernization." Under the leadership of Raul Prebisch — an economist from Argentina and CEPAL's first director — the Cepalistas used a method known as "historical structuralism" to demonstrate that modernization would not lead to development in Latin America because

" A typology of the range of political positions in the final years of the Fourth Republic, including developmental nationalism, is set out in Caio Navarro de Toledo, "1964: o Golpe contra as reformas e a democracia", in Daniel Aarao Reis Filho, Marcelo Ridenti, and Rodrigo Patto Sa Motta, O golpe e a ditadura militar : quarenta anos depois (1964-2004) (Bauru, SP Brazil: Editora da Universidade do Sagrado Coracao, 2004). 12 Modernization theory is discussed in David M. Trubek and Mark Galanter, "Scholars in self- estrangement: some reflections on the crisis in law and development studies in the United States," Wisconsin Law Review 1974.4 (1974): 1062. For a Latin American perspective on modernization theory and the law and development movement, see Cesar A. Rodriguez Garavito, "Globalizacion, reforma judicial y estado de derecho en Colombia y America Latina: el regresso de los programas de derecho y desarrollo", in Rodrigo Uprimny, Cesar A. Rodriguez Garavito, and Mauricio Garcia Villegas, ^Justicia para todos? : sistema judicial, derechos sociales v democracia en Colombia (Bogota: Grupo Editorial Norma, 2006). 1 CEPAL is an acronym for "Comision Economica para America Latina" (in Spanish). 87 of the structure of Latin American economies, inherited from colonialism, in which Latin America was engaged in agricultural production for export to richer countries which in turn exported manufactured goods to Latin America. While modernization theorists argued that market-driven investment in industry would have a "trickle down" effect within the Latin American economies, the Cepalistas responded that state intervention was required to divert industrial investment from the relatively developed regions to less developed regions where agriculture, rather than industry, was the main economic activity. The Cepalistas advocated a planned economy in which import-substitution industries were subsidized and capital investment was directed towards the regions where industrial development was most required. During Brazil's Fourth Republic, the structuralist approach gave rise to the developmental state,14 and to an industrialization strategy in which the central state both channeled investment capital to the Northeast — including Bahia —and encouraged the "industrialization" of the region's agricultural economy, since agriculture was considered to be backward and industrialization was thought to be a more modern approach.

While the Brazilian Cepalistas were influenced to varying degrees by nationalism and the Latin American tradition of anti-imperialism, this nationalist or anti-imperialist sentiment also found expression in another development theory known as "dependency theory" that originated within the same intellectual milieu as structuralism.15 The dependentistas argued that underdevelopment was caused by the relation of dependency between international capital and the Latin American economies, and that development

14 Vivek Chibber defined a developmental state as one which promotes economic development by subsidizing industry and at the same time engages in economic planning so that investment is directed to regions and sectors in which state planners identify a need. Vivek Chibber, "Reviving the Developmental State? The Myth of the "National Bourgeoisie'," Socialist Register (2005): 226-46. 15 The literature on dependency theory or the dependency approach is voluminous. For a sample of Cardoso's approach see Fernando Henrique Cardoso, "The Consumption of Dependency Theory in the United States," Latin American Research Review 12.3 (1977): 7-24, and for Frank see Andre Gunder Frank, Latin America : underdevelopment or revolution (Andover, Mass: Warner Modular Publications, 1973). Cardoso co-authored what many consider the seminal work on dependency theroy: Fernando Henrique Cardoso and Enzo Faletto, Dependency and development in Latin America (Berkeley: University of California Press, 1979). 88 required these economies to become less dependent on foreign capital. Two distinct strains or currents of dependentistas can be identified within Brazil. One, a current led by Andre Gunder Frank (who was working in Brazil at the time of the coup), was anti- capitalist:

It is the naked capitalist interests of landowner-merchants and financial and commercial groups, which find their cover in the strategy and tactic of the bourgeoisie to "reform" capitalism. The strategy and tactic of the peasants and their allies must be to destroy and replace capitalism.16

Another current — led by Fernando Henrique Cardoso17 ~ proposed a dependency "approach" (rather than theory) in which Brazil's development under the post-1964 military regime was explained as the result of an alliance between domestic or national capital ~ the "national bourgeoisie" — on the one hand and international capital on the other hand, to their mutual benefit but to the detriment of the general domestic population. In this approach the national bourgeoisie could play a positive role in development by allying itself with the domestic population instead of international capital, a vision similar in this respect to what the PCB proposed during the Fourth Republic. This debate about alternative paths to development in Latin America continued to influence events until 1973 when it came to an abrupt halt:

In terms of their practical application, all of these theories failed the test of history in the 1970s and 1980s... [T]hese 'theories' and their associated policies have been defeated by more powerful opponents. Politically, General Pinochet has done this by force of arms in Chile, the main locus of the germination, birth, development, and application of both structuralism and dependence theory.18

1 Andre Gunder Frank, Capitalism and underdevelopment in Latin-America : historical studies of Chile and Brazil (New York: Modern Reader Paperbacks, 1969), page 270 17 Fernando Henrique Cardoso was a sociologist at the University of Sao Paulo up until the coup of 1964. He was elected President of the Republic in 1994 and was re-elected in 1998. 18 Andre Gunder Frank, "Latin American Development Theories Revisited: a Participant Review", Latin American Perspectives, vol. 19, No. 2, (Spring, 1992), 125-139. Frank proposed to replace dependency theory with a variant of the "world system theory" articulated by Emmanuel Wallerstein. In Frank's version, the "world system" has been driven by "capital accumulation" for the past several thousand years. 89 During the Furth Republic, the Cepalista influence was manifested in the Northeast through the work of Celso Furtado, who was the "intellectual author" and the first Superintendent of SUDENE {Superintendencia do Desenvolvimento do Nordeste or Superintendence of Development in the Northeast), a state planning apparatus for the development of the Northeast.' In addition, a political campaign known as "Petroleo e nossd" (the oil is ours) — launched in 1948 ~ led Vargas to establish Petrobras in 1953 as a state oil monopoly. When oil was discovered in Bahia a few years later, Petrobras became Bahia's main source of industrial employment. In the cacao region, Petrobras explored for oil and precious metals in the District of Castelo Novo, and elsewhere in the Almada River system, providing an alternative source of employment for cacao workers

Finally, the Alliance for Progress itself grew out of the Cepalista influence as Prebisch was able to convert the Kennedy administration (1961-1963) to the structuralist perspective on development. The Alliance for Progress was launched in Montevideo in 1961, with Cuba's Ernesto Che Guevara as the only dissenting voice, based on a proposal developed by Prebisch and Kennedy's ambassador to Brazil, Lincoln Gordon. Furtado was therefore able to access considerable Alliance funds for SUDENE development projects in the Northeast.

The developmental state required the support of the "national bourgeoisie" and the union movement to carry out its development programmes. Support came from the

For the origins of SUDENE and Furtado's role, see Octavio Ianni, "A origem politica da sudene," Revista Mexicana de Sociologia 33.4 (1971): 647-59. Furtado used this approach to explain the divergence between the center-south region ~ including Sao Paulo and Rio de Janeiro — and the Northeast region — including Bahia. In the cepalista approach the Center-south was seen as more developed— meaning urban and modern — and the Northeast was seen as underdeveloped— meaning rural and backward. Furtado was from the Northeastern state of Paraiba. For a more complete study of SUDENE under Furtado, see Albert O. Hirschman, Journeys toward progress; studies of economic policy-making in Latin America (New York: Greenwood Press, 1968). 20 Chibber argued that during the Fourth Republic the developmental state failed because it depended on the "myth" of the "national bourgeoisie," which was the political line was promoted by the PCB. Chibber underestimated the extent to which the Goulart government gained the support of organized labour, which Chibber presents as an alternative source of support to that of the national bourgeoisie. Chibber, op. cit., fn 14. 90 union movement through the PTB-PCB alliance which formed the parallel organization known as the CGT in 1962, a central trade union body which conducted two political strikes in support of the Goulart government while maintaining its autonomy from the 9 i Ministry of Labour. As the leader of the PTB, Goulart had his own contingent of reliable union supporters {dispositivo sindical) whom he had nurtured as a former Minister of Labour under Vargas (1953) and as Vice-President (1956-1961). The support of the "national bourgeoisie" or national capital proved to be more problematic because contention between labour and capital intensified as the developmental state relaxed its 99 control of the union movement. The PCB cultivated the national bourgeoisie as an ally against U.S. imperialism, while at the same time the developmental nationalists risked alienating national capital by advancing their programme of reformas bdsicas (basic reforms). In rural Brazil, national capital proved itself willing to accept labour rights, at least on a national scale if not within the cacao region, while rejecting the prospect of a radical land reform as too revolutionary. The cogency of a dependency theory or approach was illustrated by the experience of the developmental state in the cacao region. The production of cacao was of economic significance only in relation to its commercialization within the world system, and we will see that the combined resources of the Brazilian state were insufficient to protect the regional interest within the international market. Cacao workers campaigned during the New Republic and during the Fourth Republic for their labour rights, at times with the support of the developmental state, but in the final analysis the world system determined the limits of their campaign. Within the region, however, a chain of dependency linked the relative prosperity of the burguesia cacaueira to the plight of rural workers, allowing rural unionism to campaign for a more equitable

21 The CGT, or Comando Geral dos Trabalhadores. See fn 61. 22 This was proposed in the argument of Tamara Lothian and which led to a debate with Stan Gacek: see section 1.5. 91 distribution of the region's wealth through the enforcement of the labour rights which the developmental state undertook to protect.

3.3 The New Republic

The Old Republic was formally an electoral democracy23 but it functioned as an oligarchy on an informal level in which the electoral process was based on patronage (clientelismo), corruption and violence.24 Vargas was the unsuccessful candidate of the opposition in 1930, and when the revolutionaries of 1930 installed him as head of a provisional government the prospect of a social revolution attracted support from various popular sectors and social movements. The Revolution of 1930 set about to address the social question25 and to resolve the economic crisis caused by the crash of October 1929.

The electorate represented only a small proportion of the population because women were denied the vote until 1932 and there was a literacy requirement. Oligarchs such as the coroneis do cacau used the institutions of municipal government to control the electoral mechanism and to deliver the vote for the oligarchical candidates for governor and the President of the Republic. Voters were relatively powerless in this system and rural workers were even more powerless because their illiteracy excluded them from even the formal right to vote (see footnote 24 below).

24 In Bahia the features of this informal system were:

... a societal structure in which the voter was the least significant part of the electoral process, the electoral legislation was riddled with flaws which allowed and almost encouraged fraud, the voracious struggle was fuelled by distrust on both sides, all of this resulted in the government and the opposition guaranteeing victory by fraud in which control of the returning officers was the biggest prize... And on top of this there were the frequent calls for violence.

Consuelo Novais Sampaio, Os Partidos Politicos da Bahia na Primeira Republica: Uma Politica de Acomodacao (Salvador: EDUFBA, 1999), page 149. The original in Portuguese reads:

...a estrutura da sociedade, em decorrencia da qual o eleitor era a peca menos significativa no processo eleitoral; a legislacao eleitoral crivava de falhas, que permetia e quase mesmo sugeria a fraude; o encarnicao da luta, alimentado pela desconfiana de parte a parte, fizeram com que governo e oposicao garantissem a vitoria atraves do 'bicorio'. A composicao da mesa eleitoral era ainda o grande triunfo...Dai o frequente apelo a violencia. ["bicorio" refers literally to a plumed pen or "bico de pena" and is used here to refer to the marking of fraudulent ballots.]

25 The phrase "social question" was used throughout Latin America to refer to the demands for social legislation raised by organized labour, the need for which was obvious in view of the conditions of extreme poverty in which most urban dwellers lived. During Brazil's Old Republic, social agitation was often 92 Brazil's economy was based on the export of agricultural commodities. Although coffee from the state of Sao Paulo was the driving force of the economy, cacao was Brazil's third ranking source of foreign exchange, and cacao was the largest source of tax revenue for the state of Bahia. As a result, both Vargas and the Bahian state government responded when the burguesia cacaueira requested state intervention in 1930. Out of deference to Sao Paulo's coffee growers, Vargas's agricultural policy was generally to commit the resources of the central state while leaving administrative control in the hands of the state government. This was the approach taken to resolve the crisis in Bahia's cacao economy as well when the three levels of government cooperated to create the ICB {Institute de Cacau de Bahia or Cacao Institute of Bahia), a state apparatus which attempted to break the dependency chain through state control of the commercial and credit system. The ICB developed the region's transportation system which opened up new areas for planting and expanded the commercial network. It bypassed the export houses to deal directly with commodity markets in New York and Europe and expanded credit by offering low interest loans through the Bank of Brazil. The burguesia cacaueira was

answered by police action, which led the expression "A questao social e uma questao da policia" to be attributed to Vargas's predecessor as President of the Republic, Washington Luis.

26 In 1953 the central government began to provide cacao exporters with a rate of exchange inferior to that of the official exchange rate. An "agiotage" surplus, or the difference between these two exchange rates, accumulated and in this manner cacao exports were used to subsidize imports for the industrialization of the south-central region. Part of this surplus was directed to the cacao region after 1962 through the Fundo do Cacau (Cacao Fund) which CEPLAC controlled: Decreto 539 de 23 de Janeiro de 1962.

27 The ICB was created by Decreto Estadual no. 7.430 de 8 de junho de 1931. See Angelina Nobre Rolim Garcez, "Mechanismos de Formacao da Propriedade Cacaueira no Eixo Itabuna/Ilheus - 1890-1930" (unpublished masters thesis, Universidade Federal de Bahia, 1977), page 33. Eusenio Lavigne was the appointed mayor of Ilheus and Juraci Magalhaes was the appointed governor of Bahia. The state of Bahia took the leading role in the ICB, acting through Ignacio Tosta Filho, the first director of the ICB, and Frederico Edelweiss, the commercial director.

28 Most of the story of the ICB is taken from Angus Lindsay Wright, Market, land and class : southern Bahia. Brazil, 1890-1942 (unpublished PhD dissertation, University of Michigan, 1976), page 161ff 29 This succeeded in reducing the indebtedness of large growers only because the bank required the borrower to have legal title to their land as collateral; the smaller growers did not hold legal tilte. 93 conflicted because the large growers appreciated having access to cheaper credit while the ICB threatened the interest of the export houses.30 As Angelina Garcez put it:

The cacao elite was not interested in having strong entities which provided a counterpoint to their exclusive ability to make decisions or which proposed solutions which were outside of their area of control.31

The ICB initially threatened the regional hegemony of the burguesia cacaueira when the mayor (prefeito) of Ilheus, Eusenio Lavigne, used it to promote a cooperative movement among the small and medium growers,32 and the director of the ICB, Ignacio Tosta Filho, used his position to advocate for a social revolution in the region. The spectre of social revolution receded in March 1935 when Vargas crushed a united left opposition. Vargas then attacked the PCB and the union movement after the Intentona Comunista (a failed communist uprising in November 1935), an event which gave rise to a tradition of anti-communism within the Brazilian armed forces.33 Vargas and his

According to Wright:

Edelweiss [the ICB commercial director] looked at his central task as the destruction of the power of the export houses. He expected the attacks by the exporters and their friends as a natural part of the job.

Wright, op.cit., fh 28, page 195. Edelweiss enriched himself through his personal dealings in cacao, leaving the ICB vulnerable to attack. Already the regional elite was alienated from the ICB because Tosta Filho located the headquarters and warehouses of the ICB in Salvador rather than in Ilheus.

31 Rolim Garcez, op. cit., fn 27, page 111. The original in Portuguese reads: A elite do cacau nao interessavam entidades fortes que pudessem contrapor a sua exclusividade a nivel decisorio, ou que propusessem solucoes pensadas fora do seu ambito.

32 Rolim Garcez, op. cit., fn 27, page 83. Lavigne supported the cooperative approach for the region's small and medium growers but their lack of credit kept them tied to the large growers and export houses; instead of small and medium growers benefiting from the incentives, the export houses created a network of "cooperativas fantasmas" (phantom cooperatives) which they used to maintain control of the commercial sector.

33 Motta, Rodrigo Patto Sa "O Anticomunismo Militar", in Martins Filho, Joao Roberto, ed. O Golpe De 1964 e o Regime Militar : Novas Perspectivas. (Sao Carlos: Ed UFSCar, 2006).

94 military allies imposed the Estado Novo in November 1937, sealing the fate of the social revolution and restoring the political position of the regional oligarchs. In the cacao region, Lavigne was removed from office and control over municipal government was handed back to the export houses, allowing the burguesia cacaueira to unite against the intrusions of the ICB.34 After a temporary recovery during the Second World War, the ICB went into a steady decline and by the time of the Vieira court was moribund.

The experience of the ICB indicated that the combined resources of the three levels of the Brazilian state were not sufficient to challenge the dependency of the cacao economy on the world system. The coronets, as representatives of national capital or the "national bourgeoisie", were ambivalent in their loyalty to the agenda of the developmental state. As growers, the coronets favoured the accumulation of surplus value within the region, while as large growers their interests were integrated with those of the export houses and therefore tied to the world system. This created a division within the regional elite over the definition of the regional interest. In turn, this division gave rise to a political opportunity structure within which cacao workers were incorporated through collaboration between the revolutionaries of 1930 — led by Lavigne -- and the supporters of rural unionism, as we will see in Chapter 4.

34 Wright, op.cit., fn 28, page 204. Mario Pessoa, the son of Antonio Pessoa, was appointed Prefeito and Lavigne was arrested. 35 Brazil was cut off from European markets and the U.S. government declared a monopoly on the import of cacao, leading Vargas to give the ICB a monopoly over cacao exports, 36 According to Wright: The ICB still exist[ed], but as a moribund institution controlled by a small clique dedicated to manipulating the financial reserves of the Institute as a political club in rugged internecine warfare. Such warfare still characterizes the Bahian cacao world nearly a century after the stormy beginnings of the cacao boom in the late nineteenth century. Wright, op.cit., fh 28, page 227-228. The ICB continued its decline and was finally extinguished in 1992. 95 3.4 The Fourth Republic

The redemocratization process began in 1942 when Vargas launched his trabalhista project. When the war ended Vargas tried to ride a wave of social agitation to remain in power. Vargas controlled the PTB and he briefly enjoyed the support of the PCB from the time its long-serving leader Luis Carlos Prestes was released from prison in August 1945 until the military forced Vargas to step aside in October 1945, at the behest of the "pro-modernization" opposition.37 Nonetheless, the PCB was registered as an electoral party in November 1945 and participated in congressional elections in December 1945 when Marshal Eurico Gaspar Dutra was elected President for a five year term which ended in January 1951. A constituent assembly proclaimed the constitution of the Fourth Republic in September 1946, marking the return of the liberal state.

Dutra was a stalwart Cold Warrior and his government was pro-modernization except when it came to the choice of a regime of labour law; Dutra was concerned about controlling the unions and he preferred to maintain the CLT regime for this purpose.

Francisco Correa Weffort, "Origens do Sindicalismo Populista no Brasil (a Conjuntura do Apos- Guerra)," (Seminario sobre "Movimentos laborales en America Latina", ICIS, FLACSO, C1ACSO, ILDIUS-CEDAL,Mexico City, Novembro 1972), page 75. The Estado Novo ended with an era of political freedom and with the release of the political prisoners, including Luis Carlos Prestes, who was elected General Secretary of the PCB in August 1945. The PCB was recognized as an electoral party in November 1945 and in the December elections obtained 9% of the votes and elected 16 members of Congress, including one senator (Prestes).

38 The Fourth Republic is sometimes referred to as a "democratic interregnum": Robert Jackson Alexander and Eldon M. Parker, A history of organized labor in Brazil (Westport, Conn.: Praeger, 2003), page 79. While democracy is always a contested concept, during the military regime it became the opposition's rallying cry and the seminal work on the centrality of democracy for the political left in Brazil was Carlos Nelson Coutinho, A democracia como valor universal : notas sobre a questao democratica no Brasil (Sao Paulo: Livraria Editora Ciencias Humanas, 1980).

39In order to gain the support of the PTB in the 1945 election, Dutra promised to maintain the CLT regime and to allow the PTB to retain control of the Ministry of Labour: Lucilia de Almeida Neves Delgado, PTB : Do Getulismo Ao Reformismo (1945-1964) (Sao Paulo, SP: Marco Zero, 1989), page 64.Dutra then used the control mechanism of the CLT to his advantage in a way that foreshadowed the military regime that came later. The Sao Paulo industrialists were organized into an employer association known as the Federation of Industries of the State of Sao Paulo (FIESP), which by 1945 was "the most powerful employer interest group in Brazil". In September 1946, Dutra removed the PTB Minister of 96 Within the official union movement the PTB and the PCB competed for leadership, while the PCB formed, in succession, two parallel organizations, the central labour bodies known as the MUT (Movimento Unificador dos Trabalhadores or United Workers Movement) and the CTB (Confederacao dos Trabalhadores do Brasil or Confederation of Brazilian Workers). In May 1947 the PCB was disqualified as an electoral political party and its congressional representatives were removed from office. Dutra then forced the PCB underground, banned the MUT and CTB, and intervened {intervengao) in hundreds of their affiliated unions.41 The period from November 1945 to May 1947 was the only period during the Fourth Republic in which the PCB was recognized by state law,42 and the period is referred to by some authors as the "democratic interval." 43 Colistete put the end of this interval in the context of the Cold War:

.. .the opportunity to curb the re-emerging labour movement came with the Truman Doctrine...[which gave a] green light to anti-communist measures...The anti-communist policy promoted world-wide by the US

Labour and appointed the director of FIESP, Morvan Dias Figueiredo, as the new Minister. Figueiredo asserted control of the militant unions by removing their elected leaders and installing Ministry loyalists (pelegos): Renato P. Colistete, "Productivity, Wages, and Labor Politics in Brazil, 1945-1962," The Journal of Economic History 67.1 (2007), page 102.

40 Timothy Fox Harding, "The Political History of Organized Labor in Brazil," (unpublished PhD dissertation, Stanford University, 1973), page 216 41 The CTB was dissolved by Decreto 23.046 de 7 de maio de 1947, which also required union leaders to sign a statement of their ideological purity (atestado de ideologia), a requirement that was lifted by Vargas on September 2, 1952: Sidnei Munhoz, "Political Freedom or Restriction? Decision to Outlaw the Communist Party in Brazil", (unpublished, nd, available on line at (http://sitemason.vanderbilt.edu/ files/iXPd84/Munhoz%20Sidnei.doc, visited on December 4, 2008). 42 For a general history of the PCB, see Ronald H. Chilcote, The Brazilian Communist Party: conflict and integration 1922-1972 (New York: Oxford University Press, 1974). For the party's history through its own documents, see Edgard Carone, O P.C.B. (Sao Paulo: Difel, 1982). Jacob Gorender, a central committee member, was interviewed about the PCB in the 1950s: Jacob Gorender and Waldir Jose Rampinelli, "O PCB nos anos 50," Revista Brasileira de Historia 23.45 (2003): 303-9,. For the PCB and union politics in their clandestine period to 1952, see Augusto Cesar Buonicore, "Sindicalismo Vermelho: A Politica Sindical do PCB enter 1948 e 1952," Cad. AEL 7.12/13 (2000). 43 Petilda Serva Vazquez, "Intervalo Democratico e Sindicalismo: Bahia-1942/1947," (unpublished masters thesis, Universidade Federal de Bahia, 1986). 97 government found in Brazilian elites and governments its most dedicated 44 supporters. Vargas again took office in January 1951 and returned control of the Ministry of Labour to the PTB. In 1952 the PCB began to operate more openly within the union movement and in 1954, following the suicide of Vargas, the PCB began to construct the PTB-PCB alliance within the union movement. In 1955 the PTB and the PCB supported the presidential campaign of Juscelino Kubitschek, the candidate of the PSD, and Joao Goulart ran successfully as the PTB candidate for Vice-president on a separate ballot. The inauguration of Kubitschek as President in January 1956 marks the beginning of developmental nationalism in power:

The Kubitschek strategy deserves the label "developmental nationalism" rather than "developmentalism" because of the manner in which it was presented to the Brazilian public. Underlying the government's statements and actions was an appeal to a sense of nationalism. It was Brazil's "destiny" to undertake a "drive to development." The solution to Brazil's underdevelopment, with all its social injustice and political tension, must be rapid industrialization.45.

In the cacao region, 1956 also marked the beginning of another crisis in which the problems of credit, commercialization and productivity repeated themselves, as they did "in the same way at each conjuncture of crisis".46 The 1956 crisis was different from the 1930 crisis because its primary cause was the mode of production rather than dependency on the world system. Prior to 1956, total production in the region was increased by increasing the amount of land under cultivation, while at the same time productivity was in a slow decline. Measured in kilos of cacao seeds produced per hectare, productivity in the post-war era had peaked at 670 kilos per hectare but by 1956 it had declined to 344

Colistete, op. cit., fii 39, page 119-120 45 Thomas E. Skidmore, Politics in Brazil. 1930-1964; an experiment in democracy (New York: Oxford University Press, 1967), page 166-167 46 Rolim Garcez, op. cit., fn 27, page 41. The original in Portuguese reads: Os problemas se repetiram na mesma medida em cada conjuntura de crise.

98 kilos per hectare because the cacao trees were too old and the region's eco-system was out of balance.47 The productivity crisis was compounded by developments in the world system. It was not unusual for the world price of cacao to rise and fall markedly but when it dropped in half from 1954 to 1956 because of increased production in Africa, the decline compounded the productivity crisis. The growers recognized that the regional interest again required state intervention so at the end of the 1956 harvest they gained the attention of the Kubitschek government by threatening a general strike. The federal and Bahian governments both had an interest in saving the regional economy because cacao was still Brazil's third largest export and Bahia's most valuable crop.

The approach of developmental nationalism to the cyclical crises of the cacao economy was to establish CEPLAC (Comissao Executiva do Piano de Recuperagao Economica-Rural da Lavoura Cacaueira or Executive Commission of the Plan for Rural Economic Recovery of the Cacao Crop) in January 1957.49 In keeping with the drive of the Kubitschek government towards rapid industrialization, the CEPLAC technicians, borrowed the phrase "industrialization of agriculture" from Karl Kautsky and applied the

Rolim Garcez, op. cit., fn 27, page 44, footnote 17. Peter T. Knight, "Economics of cocoa production in Brazil," in John Simmons, ed., Cocoa production : economic and botanical perspectives (New York: Praeger, 1976), page 243. These production figures can be compared to the figures used by CEPLAC in Table 1; evidently the Table 1 figure of 1500 kilos per hectare was based on CEPLAC s goal or ideal vision of what level of productivity was possible. 48 Amilcar Baiardi, Subordinacao do trabalho ao capital na lavoura cacaueira da Bahia (Sao Paulo: HUCITEC ; Salvador, 1984), page 78, 142. Cacao constituted 5% of Brazil's total export earnings and 70% Bahia's exports. The timing of this latest crisis was fortuitous because the development state hit its stride when Juscelino Kubitschek took office as President of the Republic and Antonio Balbino de Carvalho Filho was elected governor of Bahia, with the support of the PTB. Within the region there was a growing sense of militancy as some growers protested by burning their cacao in the public markets while others planed a general strike. On the eve of the strike, a delegation of growers met with President Kubitschek and was promised the assistance of his government. 49 Decreto 40.987 de 20 de Janeiro de 1957. For a critical assessment of CEPLAC from an agronomist's perspctive, see Peter T. Knight, "Transforming traditional agriculture: the CEPLAC experience with cocoa in Bahia," in H. Jon Rosenbaum and William G. Tyler, Contemporary Brazil : issues in economic and political development (New York, N.Y.: Praeger, 1972). 99 Cepalista solution to the region's underdevelopment, that is, the industrialization of its agriculture-based economy.50

Kubitschek relied on Tosta Filho (the former director of the ICB) for advice and he produced a plan which was almost identical to his plan for the ICB.51 Kubitschek accepted Tosta Filho's advice and created CEPLAC to carry it out. The key financial institution within CEPLAC was the export agency known as CACEX (the Carteira do Comercio Exterior or Exterior Commerce Fund), which Tosta Filho headed, giving himself control of credit and commerce and a seat on the CEPLAC executive. CEPLAC soon began to operate like a regional government, under the control of the central government and beyond the reach of both the state of Bahia and the burguesia cacaueira.

The developmental state, led successively by Presidents Kubitschek (1956-1961), Quadros (January 1961-August 1961) and Goulart (August 1961 to March 31, 1964) promoted the growth of export crops through the industrialization of agriculture, at the expense of the family agriculture sector. Initially the CEPLAC technicians took this approach for granted. According to Baiardi:

The evidence is beyond question that CEPLAC struggled decisively for the strengthening of the cacao agro-business, creating space for the process of concentration of capital and profit which was evident even before its creation in 1957. The privileged and even exclusive assistance which benefited the large production units increased the vulnerability of

Karl Kautsky, The agrarian question : in two volumes (London: Zwan, 1988). This began the fifth and final cycle of the cacao economy, the "industrialization cycle". 51 The plan was known as the Piano de Recuperacao Economica-Rural da Lavoura Cacaueira (Plan for Rural Economic Recovery of the Cacao Crop). Rolim Garcez, op. cit., fh 27, page 48. This was not a new proposal, and in general terms it was more or less the same offered by the same Tosta Filho for the creation of the ICB. The original in Portuguese reads: Nao era uma proposta nova, e em linhas gerais, era mais ou menos, a mesma ofericida pelo mesmo Tosta Filho quando da criacao do ICB.

100 the family unit which became the easy prey of the cacao buyers and the fazendeiros.

As noted, CEPLAC was autonomous from the Ilheus regional elite. This initially was a source of tension, but as productivity increased from 220 kilos per hectare in 1962 to 740 kilos per hectare in 1980 the level of tension diminished. CEPLACs approach to productivity was based on promoting its "pacote technologico" (technological package), including the "three basic practices" of pest control, disease control and fertilization, which further reinforced the existing agrarian structure because only the large growers had access to the capital required to carry them out.54 Although this approach was referred to as industrialization, its effect on the labour market was counter­ intuitive because it increased the demand for labour to carry out these practices. Otherwise the mode of production remained unchanged as it was not capable of mechanization, except that mules were replaced by tractors and trucks when the terrain permitted:

In growing cacao, the utilization of manpower is not an alternative to technological innovation, in the sense of reducing the costs of production, but a requirement imposed by the growing itself and by innovation itself.55

Baiardi, op.cit., fn 48, page 115. The original in Portuguese reads:

Sao inquestionaveis as evidencias de que a CEPLAC concorreu decisivamente para o fortelecimento da cacaucultura empresarial, deixando espaco para o processo de concentracao de capital e de renda que ja se vinha verificando antes mesmo de sua criacao em 1957. A assistencia privilegiada e mesmo exclusiva de que se beneficiou a grande unidade de producao, aumentou a vulnerabilidade da unidade familiar que se tornou presa facil dos compradores do cacau e dos fazendeiros.

53 Lurdes Bertol Rocha, "A Regiao Cacaueira da Bahia- uma abrodagem fenomenologica," (unpublished doctoral dissertation, Universidade Federal de Sergipe, 2006), page 96 54 Helomar Duarte Ramalho, Escassez de Mao-de-Obra na Regiao Cacaueira da Bahia: Fatores Condicionantes (Ilheus, Bahia, Brasil: CEPLAC, Centro de Pesquisas do Cacau, 1977), page 5 55 Ana Maria Bianchi dos Reis, Diagnostico Socio-Economico da Regiao Cacaueira: Mao-de-obra e elementos de relacoes de producao (Ilheus: CEPLAC, 1976), page 37. The original in Portuguese reads: [N]a cultura do cacau, a utilazao de mao-de-obra nao e uma alternativa as inovacoes tecnologicas, no sentido de reduzir os custos de producao, mas uma condicao imposta pela propria cultura e pela propria inovacao. 101 As a result, the attention of CEPLAC technicians was diverted to overcoming a shortage of labour. Their working hypothesis was the following:

We assume that the scarcity of manpower in the cacao crop is due not only to rural emigration but is also increased by the demand for workers to assist in the new technology, renew the cacao trees and increase the area under cultivation.56

A CEPLAC study carried out in 1974 showed that more workers would be attracted to work in cacao if wages were higher and the labour rights available in the cities were also available on the fazendas. There was some irony in these findings because state law had formally guaranteed equal labour rights for rural workers since the enactment of the ETR in 1963. As for higher wages, this seemed unlikely because unskilled labour even in urban areas did not attract more than the same minimum wage, that is, the wage to which cacao workers were already formally entitled.

If higher wages would have resolved (at least partially) the manpower shortage, why did wages not increase accordingly? The answer may lie in the boom-bust nature of the cacao economy in which -- in addition to the cost of production -- surplus value was determined by local weather conditions and a volatile world system. The crop size and the world price were two independent variables that determined the total value of the crop. During the time of the Vieira court, the crop size varied from a low of 123,000 tons in 1964 to a high of 201,000 tons in 1970 while the export price per ton varied went from a low of US$ 301 in 1965 to a high of US$ 1069 in 1973. As illustrated in Appendix B, the total value of the crop was determined by these two independent variables, both of which were difficult to predict. Appendix B shows that, during the time of the case study,

Ramalho, op. cit., fh 54, page 7. The original in Portuguese reads: Supoem-se que a escassez de mao-de-oba para a lavoura do cacau, seja devida nao somente a emigra9ao rural, mas tambem incrementada pela necessidade de trabalhadores para o atendimento da nova technologia, renovacao de cacauais e aumento da area cultivada.

102 the total value varied from year to year, from a low of US $ 37,324,000 in 1965 to a high of US $ 171,040,000 in 1971.57

Although the initial approach taken by CEP LAC reinforced the dependency chain discussed in Chapter 2, in later years the CEPLAC technicians paid attention to the smaller growers and the family agriculture sector. The promotion of cooperatives was again used in an attempt to weaken the dependency chain, and in response the large growers and the export houses turned to the Bahian state government and the ICB to

CO counter the influence of CEPLAC and the cooperatives. This strategy gained ground after the coup when the military regime initially sided with the regional elite. However, the military governments eventually provided some support to the cooperative sector through the Bank of Brazil.59 In order to accommodate the concerns of the large growers, the Conselho Consultivo dos Produtores de Cacau (Consultative Council of Cacao Producers) was created in 1974 to give them a forum from which the large growers could offer advice to CEPLAC and the Bahian government.60

3.5 The military regime

The broad POS (political opportunity structure) created by developmental nationalism contracted overnight when the Goulart government was overthrown by the

Baiardi, op. cit., fh 48, pages 140 and 142. Baiardi was relying on statistics gathered by CEPLAC: see Appendix B. 58 Rolim Garcez, op. cit., fn 27, page 58. The ICB was finally extinguished in 1992. 59 In 1971 Antonio Carlos Magalhaes, known as ACM, sometimes referred to as Bahia's last coronel, became Governor of Bahia and took up the cause of the large growers and the ICB, while the central state continued to support CEPLAC and the cooperative sector, which by 1973 had recovered enough to control 25% of the crop. IBID, page 87 50 Reis, op.cit., fn 55, page 4, and Rocha, op. cit., fn 53, page 114. The tension between CEPLAC and the large growers intensified after 1989 when some large growers on the political right accused CEPLAC technicians of introducing the crop disease known as witch's broom (vassoura de bruxa) into the region to break the power of the large growers. The allegations were recently repeated in a feature article in the June 2007 issue of the popular rightist news magazine Veja on the eve of an election in which Gerardo Simoes, the PT candidate, had been a CEPLAC technician at the time. Ironically, Simoes was elected a Federal deputy and then appointed as the Secretary of Agriculture in the Bahian state government of Jacques Wagner. The allegations were repeated uncritically by Rocha. 103 military in 1964. The prospect of a radical land reform was one of the proximate causes of the military coup. Another proximate cause was the politicization of the union movement through the formation of the CGT (Comando Geral dos Trabalhadores or Workers' General Command), which carried out two political strikes in 1962 in support of Goulart.61 A third cause of the coup was the restoration of the presidential powers in January 1963, which gave the developmental nationalists impetus to pursue their programme of reformas bdsicas. The CGT then joined the developmental nationalists in the political arena and provided the PCB with an avenue of access to the Ministry of Labour. Goulart's opponents pointed to the emerging threat of a "Republica sindicalistcC (Union Republic) to rally support for an anti-communist coup.

When the military mobilized for the coup on March 31, 1964, the CGT responded with a third call for a general strike. However there was little apparent response from rank and file workers, leading proponents of the "populist unionism" thesis to claim that the parallel organizations of the Fourth Republic did not enjoy rank and file support at the OLT or grass-roots level. However, those who stress the authenticity of the union movement during the Fourth Republic point to evidence that workers were deterred from supporting a general strike by the failure of Goulart's military supporters (dispositivo

ft') militar) to provide armed support against the military.

For the history of the CGT, see Lucilia de Almeida Neves Delgado, O Comando Geral Dos Trabalhadores no Brasil. 1961-1964. (Petropolis: Vozes, 1986). The CGT was a central labour body headed by the PTB-PCB alliance. Goulart took power on the condition that he agree to a prime ministerial system which transferred control of the executive power to Congress. The second strike demanded a plebiscite to permit the return to a presidential system, which finally occurred in January 1963. This plebiscite was a rebuke to the generals who had imposed a parliamentary system in August 1961 as a condition of allowing then Vice-President Goulart to take office as President after the surprise resignation of Janio Quadros. This second strike also led Congress to enact legislation which required employers to pay a 13th month salary as an annual "Christmas" bonus (o abono do Natal). 62 Marcelo Badaro Mattos, Novos e velhos sindicalismos : Rio de Janeiro. 19551988 (Rio de Janeiro, RJ: Vicio de Leitura, 1998), page 175 ff. For the story of Goulart's last days in office, see Helio Silva and Maria Cecilia Ribas Carneiro, Historia da Republica Brasileira: A Fuga de Joao Goulart, 1962/1963 (Sao Paulo: Editora Tres Ltda, 1998). Goulart retreated from Brasilia to Porto Alegre and then on to Montevideo. According to Darcy Ribeiro, Goulart refused to mobilize his dispositivo militar in order to 104 Although the generals described their new political regime as revolutionary, they remained nominally attached to the rule of law. However, they changed the law to suit the ideological needs of their anti-communist revolution. Trubek and Gallanter explained this point of view:

The American elite and policy makers saw the "rule of law" as one of the major features that distinguished the United States from Communist nations.63

The generals won significant civilian support, and the support of the U.S government, by portraying their revolution as "anti-communist." Over the course of the following several years they legitimated a series of breaches in the legal order by declaring themselves to be a constituent power and therefore able to amend the constitution of the Fourth Republic (1946) at will to advance their revolution.64 Among the generals there were both hard-liners (duros) — who favoured coercion and the repression of all opposition — and soft-liners — identified with Castelo Branco (Castelistas), the first military president ~ who favoured accommodating the opposition and returning eventually to the liberal state. As power shifted from one group of generals to the other, the political opportunity structure expanded and contracted and the pro- democracy movement ebbed and flowed accordingly until military rule was no longer sustainable.

Castelo Branco ruled in coalition with the coup's civilian supporters, promising a return to civilian rule once the communist threat was eradicated. His government launched an initial campaign of coercion known as Operagao Limpeza (Operation

avoid a civil war: Denis de Moraes, A Esquerda e o Golpe de 64 (Espaco e Tempo, Rio de Janeiro, 1989), page 297. 63 David M. Trubek and Mark Galanter, "Scholars in self-estrangement: some reflections on the crisis in law and development studies in the United States," Wisconsin Law Review 1974.4 (1974): 1062, page 1086. Three studies on the relation between the judiciary and autoritarian regimes, including Brazil's military dictorship, are cited in Chapter 5, footnote 58. 64 For a summary of the constitutional history of the military regime, see Alves, op. cit., fn 3 105 Cleanup) and replaced developmental nationalism with "authoritarian developmentalism."66 The economy was opened up to foreign investment and foreign policy was more oriented towards the exigencies of the Cold War realpolitik. We will see in Chapter 4 that nationalism continued to influence both domestic and foreign policy.67

The union movement was an early target of Operagao Limpeza. The CGT was disbanded and the new Minister of Labour, Arnold Sussekind ~ one of the authors of the CLT -- intervened (intervengao) in the CGT affiliated unions, which mirrored the action taken by President Dutra against the CTB in 1947. This intervengao was consistent with the purpose initially intended by the trabalhista elite:

What the legislator envisaged was to maintain unionism within its natural orbit, which is restricted to the professional interests of workers, and this did not occur. The Public Power turned a blind eye to the transformation of unionism into a political movement, especially when this served the interests of the men of the Government. On the other hand the political parties facilitated this deviation of unionism, undermining the intention [of the legislator].68

65 IBID, page 34 ff 66 Antonio Negro coined the phrase "authoritarian developmentalism" to refer to the policies of the military governments: Antonio Luigi Negro, Linhas de montagem : o industrialismo nacional-desenvolvimentista e a sindicalizacao dos trabalhadores (1945-1978). (Sao Paulo SP: FAPESP : Boitempo Editorial, 2004).

For example, Brazil's military regime was among the first to recognize the MPLA government in Angola, despite its Marxist-Leninist orientation and its close relation with the Soviet Union: Jose Flavio Sombra Saraiva, "Um Momento Especial nas Relacoes Brasil-Angola: Do Reconhecimento da Independencia aos Desdobramentos Atuais", in Selma Pantoja and Jose Flavio Sombra Saraiva, eds., Angola e Brasil nas Rotas do Atlantico Sul. (Rio de Janeiro: Bertrand Brasil, 1999). For an overview of the military's foreign policy, see Paulo G. Fagundes Vizentini "O Regime Militar Brasileiro e Sua Politica Externa", in Joao Roberto Martins Filho, ed. O Golpe De 1964 e o Regime Militar : Novas Perspectivas. (Sao Carlos: Ed UFSCar, 2006)

Segadas Vianna, O Estauto do Trabalhador Rural e sua Aplicacao (Comentarios a lei no. 4.214 de 2 de marco de 1963) (Sao Paulo: Livraria Freitas Bastos S.A., 1965), page 237-238. The original in Portuguese reads: O que o legislador visou foi manter o sindicalismo dentro de sua orbita natural, que esta circunscrita aos interesses profissionais dos trabalhadores, e isso nao tern acontecido. O Poder Publico faz vista grossa diante da transformacao syndical em movimento politico, especialmente 106 Unable to rule by coercion alone, Castelo Branco attempted to accommodate the working class through the novo trabalhismo approach, and his choice of Sussekind as his Minister of Labour was appropriate for this purpose. Historically Sussekind's trabalhismo had been that of the dddiva theory in which the state determined what labour rights were appropriate, without pressure from a politicized union movement.

The agrarian social movement was also an early target of Operagdo Limpeza and Sussekind used his power of intervengdo at all levels of the rural union structure. Sussekind also relied on the more drastic measure of withdrawing recognition from what he judged to be "phantom unions" and "phantom federations," that is, unions and federations that had no substantive membership base. While intervengdo gave control of a union to a Ministry pelego, removing recognition meant that the union was formally abolished. The rural unions and federations that escaped intervengdo or formal abolition were those that were judged to be sympathetic to the military's revolution.69

Sussekind used the provisions of the ETR to gain control of the rural unions but the Ligas were beyond his jurisdiction and instead they were disbanded by government decree. The personal fate of Liga leaders and rural union leaders was a matter for the RSA (Repressive State Apparatuses), and many leaders of the agrarian social movement suffered exile, torture or death. For example, Juliao was imprisoned and forced into exile; Jose dos Prazeres from the Ligas was severely beaten and suffered a stroke as a result; and as for Gregorio Bezerra, a rural union leader from Pernambuco:

quando isso vem atender aos interesses dos homens do Govemo, e, por outro lado, os partidos politicos, falhando nas suas finalidades, facilitam essa desvituacao do sindicalismo

69 In Pernambuco, Padre Melo and Padre Celso were able to nominate many of the interventores: Ruda Ricci, Terra de ninguem : representacao sindical rural no Brasil (Campinas: Editora da Unicamp, 1999), page 89 70 Lygia Sigaud, "Honneur et Tradition dans les Plantations Sucrieres du Nordestre (Bresil)," Etudes rural, janvier-juin 1999 (1999): 211; Mallon, op.cit., fn 8, page 66. 71 Emilia Viotti da Costa, O Supremo Tribunal Federal e a construcao da cidadania (Sao Paulo: Instituto de Estudios Juridicos e Economicos, 2001). 107 He was taken prisoner on April 2 [1964] by the military police and handed over to Coronel Darcy Villoc who beat him with iron bars. Bezerra fainted, was revived, and was forced to walk in a vat of battery acid. They tied three ropes around his neck and he was dragged through the gravel streets [of Recife]. The coronel had decided to hang him in the public 79 square but this was prevented by the commander of the Fourth Army. The agrarian social movement was brought to a halt but its demand for agrarian reform was accommodated. The ETR remained in effect until 1973, leaving the formal labour rights of rural workers in effect. Moreover, as we will see in Chapter 5, the prestige of Labour Justice was actually enhanced under the new political regime. A moderate land reform statute, known as the Land Statute, was enacted in November 1964, six months after the coup. Land reform was now a formal possibility but in the absence of a social movement the statute proved to be ineffective; in fact, the purpose of the statute may have been to avert social change:

...one can argue that there are cases when formalism has been adopted as a conscious strategy for averting social change...For example, in 1964, the Brazilian Congress passed an elaborate and largely unintelligible land reform statute, similar in many respects to the bill which it had rejected a year earlier when Goulart was still in power. The bill's passage was assured by confidence that the new military government would leave land reform at the formalistic level.. .74

Evaristo Giovanetti Netto, A bancada do PCB na Assembleia Constituinte de 1946 (Editora Novos Rumos, Sao Paulo, 1986), page 75. The original in Portuguese reads : Foi preso em 2 de abril pela policia Militar e entregue ao coronel Darcy Villoc que o recebe a canos de ferro; Bezarra desmaia, e acorrentado e obrigado a caminhar numa poca com acido de bateria, amarram tres cordas no seu pescoso e e arrastado sobre brita. O coronel resolve enforca-lo em praca publica, mas e empedido pelo comandante do quarto Exercito. At age 63, Bezarra was sentenced to 19 years imprisonment. He was released two years later in a prisoner exchange for the U.S. ambassador and went into exile until an amnesty was declared in 1979. He died in Sao Paulo in 1983. 73 Lei no. 4.504 de 30 de novembro de 1964. As a dictatorship, the military governement was able to amend the constitution to provide that land could be expropriated and paid for with government bonds rather than cash. The developmental nationalists had been stymied by this consitutional impediment. 74 Keith S. Rosenn, "The Jeito: Brazil's Institutional Bypass of the Formal Legal System and Its Developmental Implications," The American Journal of Comparative Law 19.3 (1971): 514-49, page 533 108 The military duros (hard-liners) consolidated their power in 1968, which was also the year in which the military regime initiated its agrarian policy. This agrarian policy affected rural unionism in several ways, including an "impressive growth in rural unionization" that took place after 1968 when rural unions were used as state apparatuses in an attempt to slow the rural exodus. The rural unions were mandated through a contractual relation with the state to deliver social assistance to rural workers, in a form of unionism known historically as assistencialismo (business unionism). Although assistencialismo was the antithesis of contention, the rural unions eventually oriented themselves towards the "new unionism" movement and joined the political struggle for a return to the liberal state. As the number of rural unions increased, their financial viability was also enhanced by the regime's agrarian policy, pursuant to which the Land Statute was adapted to collect the union tax {imposto sindicat) and remit it to the rural unions, the details of which are discussed in Chapter 4.77

The relation between rural unions and Labour Justice was also altered by the regime's agrarian policy because contention between rural workers and growers was channelled into the local juntas, so that the dissidio individual became the only legitimate form of contention. Labour Justice was thus used by the military to establish the authority of the central state against the private interests of the local oligarchs: by claiming labour rights in the local juntas,

For the story of this incredible year in Brazilian history, see Zuenir Ventura, 1968. O Ano Que Nao Terminou (Rio de Janeiro: Editora Nova Fronteira, 1988). 76 Biorn Maybury-Lewis, The politics of the possible : the Brazilian rural workers' trade union movement. 1964-1985 (Philadelphia: Temple University Press, 1994). This move towards assistentialismo was accelerated after the approval of Complementary Law No. 11 in of March 25, 1971. 77 Collecting the tax was not unduly complicated in the formal economy but the agricultural sector was less formal which made collecting the tax problematic. Under the Land Statute, a system of real estate taxation was created that was based on the size of the rural property or fazenda, and in 1970 the imposto sindical was harmonized with the land tax so collection was facilitated and the rural unions were guaranteed a financial base. This land tax was collected by an institute known as IBRA (Instituto Brasileiro de Reforma Agraria, or Brazilian Institute for Agrarian Reform), which later was re-named INCRA (Instituto National de Colonizacao e Reforma Agraria or National Institute for Colonization and Agrarian Reform). Rosenn, op. cit., fn 74, page 534. 109 ...unions were expected to draw the state into areas where it had been largely absent, including those dominated by local and regional no oligarchies. Although the military encouraged the use of the dissidio individual as a form of contention, rural unions in the cacao region preferred a more bureaucratic approach to claims for labour rights and settled such claims in the union office rather than taking the more contentious approach. Rural workers who preferred to rely on the dissidio individual were left to their own devices, as we will see in part III.

3.6 Concluding Chapter 3

The experience of the agrarian social movement confirms Tilly's argument that a political regime "creates a specific environment of political opportunities and threats" to which a social movement "necessarily responds". In this chapter we saw that rural Brazil was fertile ground for a campaign for agrarian reform and that at each conjuncture when such a campaign was launched it was brought to a halt by a change in the POS (political opportunity structure). Although the campaign for agrarian reform involved contention between the social movement and growers, the focus of the demand for labour rights and land reform was the central state which the agrarian social movement perceived as a potential ally against the local power of the latifundidrios and regional oligarchs. In demanding labour rights the agrarian social movement focused directly on state law and held up the CLT regime as an appropriate model for rural unionism; in the cacao region at least, the CLT regime was well suited to the goal of unionization, as we will see in Chapter 4.

A discussion of developmental nationalism and the developmental state was included in this chapter because of the intimate relation between developmental

Peter P. Houtzager, "State and Unions in the Transformation of the Brazilian Countryside, 1964- 1979," Latin American Research Review 33.2 (1998): 103-42, page 114 79 Charles Tilly, Regimes and repertoires (Chicago: University of Chicago Press, 2006), page 43 110 nationalism and the campaign for agrarian reform. The POS of developmental nationalism and the campaign of the agrarian social movement were mutually constitutive in the sense that developmental nationalism opened up the political space for the campaign while at the same time the agrarian social movement transformed developmental nationalism, as Tilly suggested in his interactional approach. Dependency theory — or the dependency approach — questioned the range of state action which was available within the world system. The political response to this question came with the military coup which proved that developmental nationalism had reached beyond its political capacity. At the same time the coup underlined the vulnerability of social actors who rely on the rule of law as a shield against the RSA (Repressive State Apparatuses) when challenging the existing social order.

The POS available to the agrarian social movement was affected by Brazil's dependency on the world system and its position in the Cold War. The influence of the PCB was a significant factor in Brazilian politics during the Fourth Republic, and anti- communism was effective in uniting those who opposed the reformas bdsicas. The extent to which the PCB was beholden to the Communist International is beyond the scope of this dissertation, but even if the official party put Cold War politics ahead of domestic interests,80 party activists satisfied the WUNC test: they were "Committed" to the "Worthy" cause of agrarian reform and worked to increase the "Number" and "Unity" of participants in the agrarian social movement.

In the cacao region, the POS was opened up to incorporate cacao workers when elite politicians such as Lavigne defined the regional interest in terms of the entire social formation rather simply in terms of the regional elite. During the New Republic the question of labour rights for cacao workers was raised both from below by social activists

80 Negro argued that there were two, or possibly three, PCBs — the official party, rank and file party activists, and infiltrators from the RSA (repressive state apparatuses): Negro, Linhas, fn 67.

Ill and from above by the Ministry of Labour. The economic crisis caused by the crash of 1929 had made it obvious that the defence of the regional interest required access to the resources of the central state which in turn required the regional elite to accommodate cacao workers within the corporatist structures of official unionism. This need to accommodate cacao workers changed with the advent of the Estado Novo when the central state shifted from accommodation to coercion and as a result the region's incipient social movement went into hiatus.

The dependency of the regional interest on the resources of the central state soon led to state intervention in the cacao economy, first through the ICB and then through CEPLAC. The ICB was accessible to the regional elite because it was primarily an instrument of the Bahian state government. In contrast, CEPLAC was primarily an instrument of the central state and maintained its autonomy from the regional elite because this elite had little influence with the developmental nationalists. In its early years CEPLAC attempted, with varying degrees of success, to mediate the relation between the region's growers and the world system by challenging the growers' dependency on the export houses. When the large growers joined the export houses in an attempt to undermine the influence of CEPLAC, the CEPLAC technicians turned their attention to the smaller growers and the notion of cooperativism. Within this POS, the plight of cacao workers was formally incorporated into the regional interest, as perceived by the developmental nationalists, through the recognition of rural unionism in the region and through the establishment of a local labour junta. The actual-existing plight of cacao workers came to the attention of CEPLAC when its technicians turned to the family agriculture sector as the starting point of their analysis of the regional interest, as Engels had recommended.

The relation between the military regime and the agrarian social movement should be distinguished from the relation between the military regime and rural unionism. Although the military relied on coercion to bring a halt to the agrarian social movement,

112 when it implemented its agrarian policy the military supported rural unionism in order to co-opt the rural unions into acting as state apparatuses. We saw that the coup had a direct negative impact on the agrarian social movement. By bringing this social movement to a halt the coup leaders contributed to the problem of non-complaince with the ETR, as suggested in section 1.7, by preventing the rural unions from seeking enforcement in the social field or by eliminating their capacity to do so.

113 Chapter 4 The campaign for labour rights

4.1 Introduction to Chapter 4

This is the last of three chapters dealing with an interactional approach to the study of the agrarian social movement. Chapter 2 considered the social network or agrarian formation in which rural workers in the cacao region were embedded and Chapter 3 considered the POS (political opportunity structure) that was available to the agrarian social movement during various political regimes. With reference to the argument introduced in section 1.7 — where three factors were identified as contributing to non-compliance with the ETR — Chapter 3 demonstrated that the change in political regimes brought about by the military coup in 1964 contributed to this non-compliance because it constricted or removed the capacity of the agrarian social movement to pursue compliance in the social field. This was the first of the three factors, and this chapter now turns to the second and third factors. The second factor was identified as the structural defects in the labour law regime. Section 4.3 is an analysis of the structure of unions within the CLT regime, including rural unions under the ETR. We will see that the CLT structure discouraged unions from forming "parellel organizations" outside of official structures, neither a central labour body to pursue a political agenda nor an OLT (workplace organization) to enforce labour rights at the workplace level. This lack of a union enforcement mechanism at the workplace level was a significant structural defect in the CLT regime which contributed to the problem of non-compliance. The third factor identified in section 1.7 was the flawed performance of the region's rural unions. By examining the campaign of the agrarian social movement for agrarian reform, and in particular the campaign for labour rights in the cacao region, this chapter will demonstrate that the flawed performance of the region's rural unions contributed to the problem of non-compliance with the labour rights of the region's rural workers.

114 The chapter begins with a discussion of the identities deployed by the agrarian social movement in its campaign for agrarian reform. We will see that an identity debate preoccupied the social movement on a national scale — were the participants workers or peasants? Debating their identity or the relative merits of land reform and labour rights was of little interest to cacao workers because the quantity of idle land available in the region for redistribution was minimal, while at the same time the need for labour rights seemed pressing.

In Tilly's interactional approach, the campaigns, repertoires and unity of the social movement are related phenomena. Tilly likened a social movement to a campaign or a series of performances over a period of time that have as their goal the achievement of the movement's demands. The origins of the campaign for labour rights in the cacao region may be traced to the Revolution of 1930. During the New Republic, Ilheus became the birthplace of rural unionism in Brazil when the Sindicato dos Empregados Agricolas de Ilheus/Pirangi (Union of Agricultural Employees of Ilheus/Pirangi) was formed in 1934.1 During the Fourth Republic Ilheus continued to play a leading role in the rural unionism movement on a national scale; in 1954 a rural union from Ilheus was a founding member of ULTAB (Uniao dos Lavradores e Trabalhadores Agricolas do Brasil or Union of Growers and Agricultural Workers of Brazil).2 Although the Ligas

' Antonio Dias Nascimento, "Peasant Social Movements and Rural Workers' Trade Unions in Bahia (1972- 1990)," (unpublished PhD dissertation, University of Liverpool, 1993), page 111. This claim was contradicted by Fernando Antonio Azevedo who asserted that the oldest rural union was formed in Campos and was recognized by the Ministry in 1933: As ligas camponesas (Rio de Janeiro: Paz e Terra, 1982), page 55, footnote l.In the cacao region the history of rural worker contention has been hidden or even distorted by the portrayal of cacao workers as passive in their own cause. Amilcar Baiardi concluded that cacao workers were passive from his field observations in 1979: Amilcar Baiardi, Subordinacao do trabalho ao capital na lavoura cacaueira da Bahia (Sao Paulo: HUCITEC ; Salvador, 1984). The first reference to this passivity or invisibility that I encountered was in an undergraduate monograph (monografia) on file at CEDOC (Centro de Documentacao e Memoria Regional or Documentation and Regional Memory Center) at UESC (Universide Estadual de Santa Cruz or State University of Santa Cruz), in Ilheus. In a study of the archive of the local junta, the student wrote that, unlike in the rest of Brazil, there was no agrarian social movement in the cacao region: Roberland Novais Almeida, "O Trabalhador Rural do Municipio de Ilheus na Decada de 1960," (unpublished monograph, Universidade Estadual de Santa Cruz, 2001). 2 Cliff Welch, The seed was planted : the Sao Paulo Roots of Brazil's Rural Labor Movement. 1924-1964 (University Park, Pa.: Pennsylvania State University Press, 1999). The founding of ULTAB is described at 115 became active in other parts of Bahia, in the cacao region they remained weak or non­ existent because rural unionism was a more natural fit with the monoculture's mode of production and the attendant identity of cacao worker.

A social movement thrives on popular support and to achieve support it requires a show of unity, which for the agrarian social movement was an elusive goal because of the divisive effect of anti-communism. During the Cold War, anti-communism was an effective instrument in the hands of the "counter-movement" because the influence of the PCB within the movement was greeted with suspicion by activists from the Catholic Church, an institution that contended with communism on a world scale. The church introduced this contention into the agrarian social movement when it matched the PCB's organizing capacity with its own.

We saw in Chapter 3 that there was a division within the PCB between the official party and its rank and file activists. A similar division was found within the church as young activists rejected anti-communism and showed a willingness to unite with activists from the PCB and the Ligas. Anticipating the liberation theology movement, both the modernizing and reformist elements of the church worked within the agrarian social movement while the traditional church remained allied with the latifundia. Ultimately, however, however, when the time came to choose sides, the modernizers joined the forces of anti-communism while the reformers joined the opposition and suffered the consequences. pages 196-197. My interpretation of rural unionism in Sao Paulo is based on the work of Welch. In addition to his book The Seed Was Planted he has published at least four articles on related topics: Cliff Welch, "Keeping Communism Down on the Farm: The Brazilan Rural Labor Movement during the Cold War," Latin American Perspectives 33.148 (2006): 28-50; Cliff Welch, "Rivalry and Unification: Mobilising Rural Workers in Sao Paulo on the Eve of the Brazilian Golpe of 1964," Journal of Latin American Studies 27.1 (1995): 161-87; Cliff Welch, "The shooting of Jofre Correa Neto", 75 The Radical History Review. (Fall 1999): 28-55; Cliff Welch , "Labor Internationalism: U.S. involvement in Brazilian Unions, 1945- 1965" Latin American Research Review, vol. 30, issue2, page 61.1 am very grateful for his generosity in providing me with some key references about rural unions in Ilheus. 3 Mainwaring divides the church hierarchy into three groups: traditionalists, conservative modernizers and reformists. Scott Mainwaring, The Catholic Church and politics in Brazil. 1916-1985 (Stanford, Calif: Stanford University Press, 1986), pages 41-42 116 The Ligas also faced internal divisions.4 The national leader of the Ligas, Francisco Juliao, favoured a peasant revolution, while his leadership rival, Francisco de Assis Lemos de Souza, supported developmental nationalism and the PCB.5 After the Playa Giron (Bay of Pigs) invasion, a third tendency within the Ligas worked with some dissidents from the PCB to establish a focus for armed revolution.6

In the cacao region the agrarian social movement was dominated by the PCB, from the era of the New Republic until 1957 when a split occurred in the international communist movement. During the Goulart government (1961-1964) the region's rural unions allied themselves with the more conservative modernizing element within the church and in 1964 the union leadership openly aligned itself with the anti-communist cause. Like church activists in Pernambuco and Sao Paulo who supported the coup, the leadership of the rural unions in the cacao region avoided the negative impact of the military's Operagao Limpeza and were able to carry on as before, having abandoned contention in any event in the years preceding the coup. In the final analysis, disunity based on anti-communism served to undermine the campaign for labour rights.

4 The story of the Ligas is well documented. For a first hand perspective see Francisco de Assis Lemos de Souza, Nordeste : o Vietna que nao houve : ligas camponesas e o golpe de 64 (Londrina, Parana; Joao Pessoa, Brazil: Editora da Universidade Estadual de Londrina; Editora da Universidade Federal da Paraiba, 1996) and Francisco Juliao, Cambao- The Yoke: The Hidden Face of Brasil, (Great Britain: Penguin Books, 1972). Other sources include Azevedo, op. cit., fn 1, and more recently, Maria do Socorro "Territorios de Confronto: Uma Historia da Luta pela Terra nas Ligas Componesas," in Silvia H. Lara Rangel and Joselina Maria Mendonca, eds. Direitos e Justica s no Brasil: Ensaios de Historia Social, ed. Nunes (Campinas: Editora Unicamp, 2005) 5 For the perspective of Assis Lemos on his role in the movement, see Assis Lemos, op. cit., fn 4. 6 Florencia E. Mallon, "Peasants and Rural Laborers in Pernambuco, 1955-1964," Latin American Perspectives 5.4, (1978): 49-70, page 80. These were dissidents from the PCB who, after the Bay of Pigs invasion of Cuba, set up a training camp in Dianapolis, Goia in late 1961, led by Clodimir Monies. 117 4.2 The identity debate: peasants or workers?

Cacao workers had a variety of identities available to choose from, including the regional identity of Grapiuna which united growers and workers around a common regional interest. Although the leaders of the agrarian social movement debated whether the identity of "peasant" or "worker" should be deployed in the campaign for agrarian reform, in the cacao region the identity of "rural worker" was more appropriate to the mode of production and was therefore deployed in a campaign for labour rights. Rather than identify with the burguesia cacaueira in defense of the "regional interest", cacao workers who adhered to the agrarian social movement identified with other rural workers in the campaign for labour rights.

The Revolution of 1930 set out to address the social question but Vargas was not prepared to lead a social revolution. The POS of the New Republic allowed various social actors to launch campaigns which deployed identities based on class, race and gender and which often intersected. A feminist movement, led by Bertha Lutz8 and the FBPF (Federaqao Brasileira pelo Progresso Feminino or Brazilian Federation for the Advancement of Women) won for women the right to vote in February 1932, although subaltern women remained disenfranchised by a literacy requirement.9 Other rights won

7 Grapiuna is a term that refers to the regional culture. I use it here to suggest that the regional elite attempted to convince cacao workers to identify with the regional interest rather than with their class interests, as suggested by the rural worker identity. For the meaning of Grapiuna, see Mary Ann Mahony, The world cacao made : society, politics, and history in southern Bahia. Brazil. 1822-1919. (unpublished PhD dissertation, Yale University, 1996), page 267. Among the other identities that were available were Nordestino (worker from the Northeast), black, Afro-Brazilian, nativo (native born), caboclo (of mixed indigenous decent), indigenous, mulatto, women, peasant, worker or simply Brazilian. 8 Lutz was associated with the Autonomist Party led by Dr. Pedro Ernesto, who was the interventor in Rio de Janeiro and a member of Vargas' inner circle (the "gabinete negro" or "black cabinet" as it became known). She was elected as an alternate member of Congress and took a seat in 1936 when the elected Deputy died: Michael L. Conniff, "The Tenentes in Power: A New Perspective on the Brazilian Revolution of 1930," Journal of Latin American Studies 10.1 (1978): 61-82. 'Concerning the right to vote, Susan Besse wrote: ...the vote was meaningless for the majority of Brazilian women who remained un-enfranchised (because of the continued literacy requirement) and largely useless as a tool for improving the 118 by this social movement — equal pay for equal work and paid maternity leave ~ were consolidated into the CLT as labour rights but progress towards equality was halted by the Estado Novo:

The new regime was headed by acknowledged admirers of fascist Italy and Hitler's Germany, and emitted unmistakable signs of hostility towards women and their quest for greater equality.

A similar fate awaited the movement for racial equality which was launched during the New Republic under the leadership of the FNB (Frente Negra Brasiliera or Brazilian Black Front) and its Secretary General, Isaltino Veiga dos Santos. The nationalist agenda of the Revolution of 1930 acknowledged that the social question was caused in part by discriminatory hiring practices which favoured European workers over "native" (nativo) Brazilian workers. Vargas addressed this issue by enacting the Lei dos 2/314 which was intended to erase one of the vestiges of the slave system. Brazilian

conditions of the vast majority of Brazilian women's lives (owing to the elitist and authoritarian nature of Brazilian politics). Susan K. Besse, Restructuring patriarchy : the modernization of gender inequality in Brazil. 1914-1940 (Chapel Hill: University of North Carolina, 1996), page 165. The literacy requirement was eroded for unionized workers in 1945 when a new electoral law allowed "ex-officio voter registration", meaning that all unionized workers could vote whether they were literate or not: John D. French, "Industrial Workers and the Birth of the Populist Republic in Brazil, 1945-1946," Latin American Perspectives 16.4, Views and Debates (1989): 5-27, page 7 10 Magda Barros Biavaschi, "O Direito do Trabalho no Brasil- 1930/1942: a construcao do sujeito de direitos trabalhistas," (unpublished doctoral dissertation, Universidade Estadual de Campinas-UNICAMP, 2005), page 208. Judge Biavaschi described a case in which the issue of equal rights for women was litigated in 1941. " IBID, page 208. Her reference was to Decreto 21,417-A 12 Ilan Rachum, "Feminism, Woman Suffrage, and National Politics in Brazil: 1922-1937," Luso-Brazilian Review 14.1 (1977): 118-34, page 129 13 The FNB was founded in Sao Paulo in 1931 as a political organization rather than as a social or cultural club and claimed to operate on a national scale. This made the FNB "the first national Afro-Brazilian political organization". Kim D. Butler, "Up from Slavery: Afro-Brazilian Activism in Sao Paulo, 1888- 1938." The Americas 49.2 (1992): 179-206, page 184-185 14 The law popularly referred to as the Lei dos 2/3 was formally named the Lei de Nacionalizacao do Trabalho (Law to Nationalize Labour), Decreto 19.482 de 12 de Dezembro de 1930. 15 According to Biavaschi: One of the inheritances of the slavery system that was sought to be overcome was the existence of a marginal mass of "free" labourers, whose productive potential was aggravated by the policies of incentives to immigration - destined, grosso modo, to substitute slave labour. The Lei dos 2/3, 119 industrialists switched from European to native labour because they were seeking a more passive workforce. Europeans workers were labeled "disloyal ingrates" and "importers of the alien, anti-Brazilian doctrines of anarchism and socialism." Employers who formerly condemned natives for their "innate laziness and irresponsibility" now "proclaimed the simple virtues of the loyal, hardworking Brazilians" and praised them for their "well- known disinclination to join unions or strike".1

Brazil did not have a legacy of formal discrimination after the abolition of slavery in 1888 but discriminatory hiring practices in the private sector and within state institutions were in fact commonplace. On behalf of the FNB, Veiga dos Santos argued that blacks were part of the native workforce that Vargas purported to favour:

...we believe that in referring to native Brazilians, it includes black Brazilians as well who have, are, and continue to be an integral part of the nation. 17

The FNB convinced Vargas to end formal discrimination in the hiring practices of the Sao Paulo state police but progress towards racial equality was halted by the Estado Novo and the adoption of the theory of "racial democracy" as an official ideology.19

one of the first of the Provisional Government, initiated a series of measures tending to overcome this framework. Biavaschi, op. cit., fn 10, page 207. The original Portuguese version reads: Uma das herancas do sistema escravocrata que se buscava superar era a existencia de uma massa marginal de trabalhadores livres, cujo potencial reprodutor se agravara com as politicas de incentivo a imigracao — destinados, grosso modo, a substituir a mao-de-obra escrava. A Lei dos 2/3, uma das primeiras do Governo Provisorio, deu inicio a um conjunto de medidas tendentes a superacao desse quadro. 16 This preference was in part the result of racial discrimination but sociological studies by Florestan Fernandes and his Sao Paulo school indicated that it was a vestige of slavery that the former captives were ill-equipped for employment in the formal economy. George Reid Andrews, "Black and White Workers: Sao Paulo, Brazil, 1888-1928," Hispanic American Historical Review 68.3 (1988): 491-524, page 499, 521 17 IBID, page 199 18 They targeted a key state institution, the Sao Paulo police. To his credit, Vargas responded by ordering that qualified black candidates be admitted into the police service. Prior to presenting their demand to Vargas, the FNB had recruited a number of qualified black candidates which they presented to the police force for consideration and some of them were hired. This story is told in Butler, op. cit., fn 13. 120 The trabalhista project privileged the worker identity by making employment in the formal economy a pathway to citizenship. While the trabalhistas focused on organizing within the structures of official unionism, a broader working class identity was being formed through neighbourhood associations and other community groups in 90 which the intersectionality of gender, race and class was evident. Women workers participated in the formal economy but their specific interests were largely ignored by the union movement. Within the agrarian social movement, rural women were urged to join the union and to take on a leadership role within their union:

Women should become union members and also participate in the leadership of these organizations because, like men, they have interests to discuss and to defend. United men and women will have more strength for 99 the struggle.

19 Gilberto Freyre, Casa-grande & senzala: Introducao a historia da sociedade patriarcal no Brasil-1 (Rio de Janeiro: Editora Record, 2001). George Reid Andrews argued that in official discourse "Freyre's paradigm held unquestioned hegemony". Although the overtly racist thesis of branqueamento (whitening) was advocated by Oliveira Viana and other key advisors, Vargas preferred the concept of a racial democracy. According to George Reid Andrews, the branqueamento thesis was that in cases of racial mixture the white genetic component would tend to dominate and if such mixture were repeated over several generations, the end result would be a "whitened" population in which African and Indian ancestry was overcome and neutralized. George Reid Andrews, "Brazilian Racial Democracy, 1900-90: An American Counterpoint," Journal of Contemporary History 31.3 (1996): 483-507. For a discussion of the various racial paradigms used in Brazil, see Roberto Motta, "Paradigmas de interpretacao das relacoes raciais no Brasil," Estudos Afro-Asiaticos 38, December 2000. For a discussion of the origins of Freyre's racial theory, see Needell, Jeffrey D, "Identity, Race, Gender, and Modernity in the Origins of Gilberto Freyre's Oeuvre." The American Historical Review 100.1 (1995): 51-77 20 Maria Helena Moreira Alves, State and opposition in military Brazil. (Austin: University of Texas Press, 1985), pages 174-182. For the significance on the neighbourhood groups in class formation, Adriano Duarte and Paulo Fontes, ""O populismo visto da periferia: adhemarismo e janismo nos bairros da Mooca e Sao Miguel Paulista"," in Cadernos AEL: populismo e trabalhismo. v. 11. n.20/21 (Campinas, Sao Paulo, Brasil: Universidade Estadual de Campinas, 2004). 21 Unmarried women "were concentrated to a large extent in exclusively female jobs at the bottom end of the job hierarchy." John Humphrey, Gender and work in the Third World : sexual divisions in Brazilian industry (London ; New York: Tavistock Publications, 1987), page 1. And see John D. French and Daniel James, The gendered worlds of Latin American women workers: from household and factory to the union hall and ballot box (Durham, NC: Duke University Press, 1997) 22 Terra Livre. September 1956. The original in Portuguese reads: 121 But despite the formal position of the rural unions, rural women were invisible within the agrarian social movement, a parallel to the invisibility of their economic role in agriculture, as we saw in section 2.6. Similarly the agrarian social movement, in dealing with racial identity, reflected the official position of the state that Brazil was a "racial democracy" despite the obvious racial stratification that characterized the agrarian structure, including in the cacao region.

Rather than focus on the identity issues that arose from the social experience of subaltern groups, the leaders of agrarian social movement focused on an identity debate that was transplanted from Europe:

The medieval European situation was often arbitrarily transposed to explain the character of the Brazilian social formation. As a result, the Brazilian agrarian economy began to be categorized as predominantly feudal, not only by left wing political parties since the emergence of the Brazilian Communist Party (PCB) in the 1920s, but also by social scientists and militant sectors in general...However, although this view had begun to be refuted even before the military took power, it predominated until the end of the 1960s and the beginning of the 1970s.23

The official line of the PCB was that Brazilian agriculture was feudal. However, within the PCB there were dissenters such as Caio Prado Junior who argued that Brazilian agriculture was entirely capitalist. For the dependentistas Brazilian agriculture could not be feudal because it had been integrated into the world system since colonization. At stake in the debate was whether investing more capital in agriculture

As mulheres devem entrar como socias dos sindicatos e tambem participar da directorio dessas organizacoes, pois, como os homens, tern interesses a discutir e defender. Unidos homens e mulheres terao mais forca para lutar. I am grateful to Cliff Welch for the references to Terra Livre. 23 Dias, op.cit., fn 1, page 5 24 Caio Prado Junior, A questao agraria no Brasil (Sao Paulo: Editora Brasiliense, 1979). Although he was a leading intellectual in the Sao Paulo sction of the PCB, Prado Junior was ideologically closer to the dependentistas. 25 Gunder Frank also contributed to refuting the feudalsim thesis: Andre Gunder Frank, Capitalism and underdevelopment in Latin-America : historical studies of Chile and Brazil (New York: Modern Reader Paperbacks, 1969). 122 would improve the lot of an impoverished peasantry ~ since capitalism is better than feudalism — or strengthen the hand of growers against the aspirations of rural workers.

The feudalism thesis was based on the extent to which sharecropping and tenant farming permeated the agrarian structure throughout most of Brazil, because these practices were considered to be imprints of European feudalism. In Brazilian agriculture, parceria — which resembled sharecropping — and to a lesser extent arrendatdrio — which resembled tenant farming — were commonplace; indeed, in the Northeast it was common for parceiros and arrendatdrios to perform personal services {cambao or yoke) for the landlord which resembled feudal obligations. Prado Junior argued that these were merely disguised forms of wage labour while Juliao argued that the parceiros and arrendatdrios were true peasants who should embrace the campones (peasant) identity with pride:

It wasn't simply a name or descriptive term, but an ideological word. You only have to mention it to call up memories of movements and organized struggles against other landowners in other countries and times, for example the German peasant wars.27

A corollary to the identity debate was whether land reform should follow the "American way" of distributing land to a family agriculture sector or the "Prussian way" of allowing large landholdings to remain in the control of a gentry class. Juliao was clear that the land should go to the peasants who worked the land and he supported a slogan suggesting that land reform would come about either by law or by force (reforma agraria

The Liga used the gherao to convince landholders to abandon ideas of personal service known as the cambao (yoke). Juliao described cambao as "the spark which fired the Peasant League in the Northeast": ...cambao is the day's unpaid labour demanded by landowners once a week from their peasants as rent for their land - normally a miserable patch of one or two hectares if the tenant is a day labourer or hired hand. In the case of a tenant farmer, cambao is labour given free to the owners at certain times of the year in addition to the usual rent in money or kind. Juliao, op. cit., fn 4. The military regime formally abolished cambao in 1964 in its land reform statute: Lei no. 4.504 de 30 de Novembro de 1964. IBID, page 71 123 na lei ou na marra). The PCB supported the slogan "Land to the Tiller," not out of conviction but rather because the party leaders believed that the peasants would support a demand of this nature.29 Prado Junior opposed the redistribution of gentry land, as the PCB slogan implied, because it would undermine the productive commodity sector, although he supported the redistribution of idle land to the family agriculture sector.30

Although the Ligas and the PCB were at odds over what type of land reform should be carried out, the agrarian social movement was united in its demand for a "radical" land reform; by radical they meant that the constitution should be amended to allow for the expropriation of the idle land of the latifundia with payment of something less than its fair market value. 3I This was the proposal which found its way into the reformas bdsicas of the developmental nationalists. The church hierarchy favoured a moderate land reform that respected the property rights of the latifundidrios. The Land Statute enacted by the Castelo Branco military government in November 1964 was based on the proposals which originated with the church approach.33

2* IBID, page 164 29 Raimundo Santos Ouestao agraria e politica: autores pecebistas (Seropedica, RJ: Editora da Universidad Federal Rural do Rio de Janeiro, 1996) 30 Prado Junior cited Vladimir Lenin who argued that agrarian reform could either follow the "Prussian model" of preserving the feudal estates for capitalist agriculture or the "American model" of distributed land to the tiller. Only the Prussian model made sense when dealing with land that was already productive. 31 The constitution of 1946 provided that property could be expropriated for a "social interest", presumably in deference to the theory of property law attributable to the French jurist Luis Duguit. The problem, from the perspective of land reform, was that the constitution required indemnification that was "prior, just and in money". The original text in Portuguese reads:

§ 16 - E garantido o direito de propriedade, salvo o caso de desapropriacao por necessidade ou utilidade publica, ou por interesse social, mediante previa e justa indenizacao em dinheiro. Em caso de perigo iminente, como guerra ou comocao intestina, as autoridades competentes poderao usar da propriedade particular, se assim o exigir o bem publico, ficando, todavia, assegurado o direito a indenizacao ulterior.

32 The origin of the phrase "reformas basicas" is obscure although it may have originated at the PTB party congress in 1956 when they were adopted as party policy. For the involvement of the church hierarchy in the drafting of this legislation, see Wolmir Amado, A Igreja e a questao agraria no Centro-Oeste do Brasil. 1950-1968 (Goiania: Editora UCG, 1996). 124 4.3 Organizational structure: peasants

The agrarian social movement deferred to the "entrenched legalism" of peasants everywhere34 and used the organizational forms which were authorized by state law. According to the PCB:

...the peasant masses want to organize themselves legally into associations and rural unions.35

The Liga was originally organized as an association and registered as a juridical person (pessoa juridica) under the Civil Code.36 Although the purposes for which an association could register as a juridical person were limited, once registered there were few practical restrictions on its activities. Although the specific organizational form of the Ligas changed over the years, in general they enjoyed more organizational autonomy

IT than did the rural unions.

The notion of a peasant league was initiated by activists from the PCB in the period following the revolution of 1930. PCB acivists formed various leagues during the democratic interval (1945-1947), although when President Dutra drove the PCB underground these original peasant leagues were disbanded. The notion was revived at

34 E. J. Hobsbawm, "Peasant Land Occupations," Past and Present.62 (1974): 120-52 35 Raimundo Santos, op. cit., fh 29: Report by Oto Santos to 4th congress. The original in Portuguese reads: ...as massas camponesas querem se organizar legalmente em associacoes e sindicatos rurais. 36 Brazil's first Civil Code was enacted in 1916: Lei No. 3.071 de 1 Janeiro de 1916. In 1945 legislation was enacted to create municipally-based rural associations (Associacao Rural) to include landholders, parceiros and arrendatarios, but, according to Welch, no such associations were ever formed: Welch, Seed, fn 2, page 95. The legislation is cited as Decreto-Lei No. 8.127 de 24 de Outubro de 1945. 37 Fernando Azevedo described the evolving formal structure of the Ligas in As ligas camponesas (Rio de Janeiro: Paz e Terra, 1982), pages 75-79. The significance of organizational autonomy remains a matter of debate among rural workers. In a recent critique of the organizational structure of the MST, Zander Navarro equated organizational autonomy with the goal of emancipation. The Navarro article was published as part of a debate: Zander S. Navarro, ""Mobilizacao sem emancipacao"--as lutas sociais dos sem-terra no Brasil,"; Martins de Carvalho, Horacio, "A emancipacao do movimento no movimento de emancipacao social continuada (resposta a Zander Navarro)," Zander S. Navarro, "O MST e a canonizacao da acao coletiva (resposta a Horacio Martins Carvalho)," in Boaventura de Sousa Santos, ed., Produzir para viver: os caminhos da producao capitalista (Rio de Janeiro: Civilizacao Brasileira, 2002). 125 the Engenho Galileia in Pernambuco in 1955. A group of arrendatdrios who were in danger of losing their land registered the Sociedade de Agricultura e de Criaqdo dos Plantadores de Pernambuco (Pernambucan Growers' Society for Agricultural and Livestock Raising) as a juridical person, using by-laws drafted by a local judge who was reputed to be "a staunch Catholic and conservative".39 They turned to Juliao for assistance, who at the time was a lawyer and a member of the state legislature {Deputado Estadual) on behalf of the PSB. Juliao used a contentious strategy of litigation, direct action and party politics, with the result that the land was expropriated by the state government, paid for in cash — as requird by the 1946 constitutionthe land — and eventually handed over to the arrendatdrios. The Engenho Galileia and Juliao won national fame and the press dubbed the juridical person a "Peasant League" in reference to the earlier PCB initiative. Juliao used both the name and the fame to build a militant peasant movement known as the Federagdo das Ligas Camponesas (Federation of Peasant Leagues), composed of member Ligas throughout the country, with Federation strength concentrated in Pernambuco and Paraiba. Ligas were active in the state of Sao Paulo and in the state of Bahia, outside of the cacao region.

Juliao was a friend of the Cuban revolution and spoke in favour of a peasant revolution in Brazil's Northeast, positions which excited the concern of the State Department of the United States of America (U.S.) and the Catholic Church.40 In response the church launched an initiative to alleviate poverty in the Northeast, led by the

38 An engenho was a traditional sugar mill, and the word is also used to refer to the rural property on which the mill was located. The usina or factory was the more modern method of processing sugar; a usina was large enough to process sugar cane from the usina land and cane purchased from other landholders. 39 This version of the story is taken from Juliao and Assis Lemos: see fn 4. The Galileia action was initiated by PCB activists, including Jose dos Prazeres, a former PCB activist who had been involved in the earlier post-war initiative. 40 Boris Fausto, ed., Historia Geral da Civilizacao Brasileira: HI O Brasil Republicano; 3. Sociedade e Politica (1930-1964). (Sao Paulo: DIFEL, 1986), page 145. For the history of the Church's political involvement in Brazil see Scott Mainwaring, op. cit., fn 3; for the political role of priests in the Northeast, see Eul-Soo Pang, "The Changing Roles of Priests in the Politics of Northeast Brazil, 1889-1964," The Americas 30.3 (1974): 341-72; for the involvement of the Church with rural workers see Wolmir Amado, A Igreia e a questao agraria no Centro-Oeste do Brasil, 1950-1968 (Goiania: Editora UCG, 1996). 126 CNBB {Conferencia Nacional de Bispos do Brasil or National Conference of Brazilian Bishops) and its founding secretary, Dom Helder Camara.41 Bishops in the Northeast, supported by President Kubitschek, organized the Conferencia dos Bispos do Nordeste (Conference of Northeastern Bishops) in May 1956. Following this conference Bishop Eugenio Sales from Natal created SAR (Servico de Assistencia Rural or Rural Assistance Service),42 which in turn

...became a target of the extensive U.S. ~ government and CIA— financial campaign to dilute radicalism in the Brazilian Northeast.43

As the Secretary of the CNBB, Dom Camara was concerned about the growing influence of the Ligas in Pernambuco so he sent Padre Melo to study how the Church could counter the Liga influence. However, Melo became favourably impressed with the work of Juliao and decided to follow his methods. He began to work directly with peasants on the periphery of Recife in the Municipality of Cabo, where peasant lands were being expropriated for industrial use. Camaro and Melo thus bridged a gap between the church's conservative modernizers and the reformists, both of whom were prepared to engage in contention with the latifundidrio to promote social justice. But although Padre Melo was prepared to engage in contention, he remained committed to anti-communism, and when Robert Kennedy visited Recife in July 1961 he congratulated Padre Melo on the work he was doing to undermine Juliao.45

As noted, the U.S. government used the Alliance for Progress to counter communist influence in the Northeast and was prepared to finance the SAR initiative for

41 Camara was a reformed Integralista. For Camara's personal role, and more generally the role of the Church, in supporting Integralismo, see Margaret Todaro Williams, "Integralism and the Brazilian Catholic Church," The Hispanic American Historical Review 54.3 (1974): 431-52. 42 The creation of SUDENE can also be traced to this conference: Fausto, op.cit., fn 40, pages 162-163 43 Mallon, op. cit, fn 6, page 58 44 Interview with Antonio Dias. Juliao perceived the Church as an ally of the latifundiarios and he argued that the antagonism of Church officials in the early stage of Liga organizing was aggravated by the presence of some Protestants preachers who supported the League. Juliao, op.cit., fn 4, page 150 45 Interview with Antonio Dias. Kennedy also toured the Engenho Galileia, which by the time of his visit was led by Church activists: Mallon, op.cit., fn 6, page 58. 127 this purpose. In 1962, the AIFLD (American Institute for Free Labor Development) set up an office in Recife to focus on the agrarian social movement. The AIFLD was chartered by the Alliance for Progress and supervised by a Labor Advisory Committee whose members included the director of the CIA and the US Secretary of State. As Welch put it:

... the AIFLD was to be an undercover instrument of U.S. foreign policy, guided in part by the CIA.46

In Pernambuco, the SAR initiative was taken up by Padre Paulo Crespo, who used funding from the AIFLD to establish SORPE (Servico de Orientacao Rural de Pernambuco)41 as the umbrella organization for the Church's involvement in rural organizing in Pernambuco. Within the Church structure, local initiatives required the approval of the local bishop. Predictably, many bishops were comfortable with SAR because it was organized on a community service model. Consequently, church activists were able to use this "approved" institutional framework to involve themselves in organizing rural workers.

4.4 Organizational structure: workers

The promise of labour rights for rural workers was part of the original trabalhista project, and although rural workers were excluded from most of the provisions of the CLT, special legislation enacted in 1944 allowed for the recognition of rural unions. Vargas committed himself to labour rights for rural workers during the 1950 presidential election campaign but as President he failed to act on this commitment until the PCB

46 Welch, "Labour Internationalism", fh 2, page 13. For another view of the involvement of US unions in Latin America, see Spalding Junior, Hobart A., "US and Latin American Labor: the Dynamics of Imperialist Control," in June C. Nash, Juan E. Corradi, and Hobart Spalding, Ideology & social change in Latin America (New York: Gordon and Breach, 1977). The AIFLD was directed by the AFL-CIO and the Labor Advisory Committee, established in August 1962, was chaired by George Meany, then the President of the AFL-CIO. 47 Mallon, op.cit., fn 6, page 57-58. According to Mallon, SORPE received indirect financial support from the CIA for its salaries and expenses. 128 organized a national congress of workers and peasants in 1953. In his Mayday address of 1954 Vargas announced that he would ask Congress to enact legislation granting labour rights to rural workers, beginning a ten year Congressional debate over the enactment of the ETR or its equivalent.49

With the prospect of favourable legislation being enacted, the PCB organized the 77 Congresso National dos Lavradores e Trabalhadores Agricolas (Second National Congress of Growers and Rural Workers) in Sao Paulo where ULTAB (Unido de Lavradores e Trabalhadores Agricolas do Brasil, or Union of Growers and Agricultural Workers of Brazil) was founded on September 21, 1954, with headquarters in that city. Its president was Lindolfo Silva, a prominent member of the PCB.50 ULTAB became the umbrella group under which the PCB carried out its rural organizing, which soon came to privilege the union structure.51

While the corporatist union structure under the CLT offered some obvious advantages, an obvious disadvantage was that recognition by the Ministry of Labour was a basic requirement, and the continuing involvement of the Ministry in internal union affairs was an infringement on union autonomy. To understand why ULTAB was willing to risk its organizational autonomy in order to gain the benefits that official recognition entailed, an explanation is required of the three central characteristics of CLT unionism — unicidade, imposto sindical and intervencdo.

When Vargas became President in 1951 the PCB began a slow exit from clandestinity and resumed its agenda to establish a 'worker-peasant alliance': see the PCB's September Declaration in Edgard Carone, O P.C.B. (Sao Paulo: Difel, 1982), page 122 49 The political process which led to the enactment of the ETR can be traced to 1950 when Brazil participated in the 33r International Labour Conference in Geneva, which called for equal rights for rural workers. The Church took up the issue of rural poverty later in the year by staging its Primeira Semana Ruralista (First Rural Week) in Campanha, Minas Gerais. After Vargas's death the PTB included agrarian reform as one of seven items in its minimal programme of reformas basicas (basic reforms): Fausto, op.cit., fn 40, page 145-153 50 Welch, Seed, fn 2, page 196. 51 Rural workers who were employed on land owned by sugar refineries (usinas) provided fertile ground for organizing since they were covered by the CLT. Welch, Seed, fn 2, page 239. 129 The notion of unicidade was that a union had exclusive rights of representation within the jurisdiction for which it was recognized; no other union could replace it within its jurisdiction.52 A union's jurisdiction was defined by its "economic category" (categoria economica) and its "territorial base". The category was designated by the Ministry of Labour and applied both to unions {sindicatos) of workers and to the corresponding employer associations (also called sindicatos) which covered all workplaces within the category. In other words, it was the nature of the workplace rather than the nature of the work that determined the category to which the workers belonged. The territorial base was typically the municipality, so a union typically represented all workers within the municipality — including both urban and rural areas ~ whose employer was designated or recognized as being within the same economic category.54

Recognition of the union's unicidade applied to various workplaces within the municipality, but the CLT regime left an individual employer free to refuse to recognize an OLT (workplace organization). Unions could organize themselves hierarchically into federations and confederations but not horizontally or across category or sectoral lines. A federation could be formed by five or more unions within the same category and within the same state (e.g. metalworkers in the state of Bahia) so that each category would have its own federation. Confederations were organized on a national scale — by three or more federations ~ but a confederation was required to be composed of federations from

Monies Filho argued that unicidade was taken from the French model of unionism which dated from 1884: Evaristo de Moraes Filho, O problema do sindicato unico no Brasil: seus fundamentos sociologicos (Sao Paulo: Alfa-Omega, 1978), pages 220-224. 53 The designation of economic categories was carried out by the Ministry through a tri-partite commission (Comissao do Enquadramento Sindical) which established a chart (Quadro de Atividades e Professoes or Chart of Activities and Professions) to show the available categories. 54 The Ilheus/Itabuna STR was one of many exceptions to this rule. The exception was likely granted because of the regional character of the cacao monoculture. By 1970 the STR had split into two separate unions, one in each municipality. 130 various categories within the same economic sector. In the CLT regime there were only six confederations until the enactment of the ETR allowed for a seventh for rural workers known as CONTAG (Confederagao National dos Trabalhadores Agricolas or the National Confederation of Agricultural workers). Beyond the confederations, the CLT regime did not mandate the establishment of a central labour body and affiliation with any international body was subject to approval by the state.

What criteria did the Ministry use for union recognition? There were formal criteria such as a constitution, by-laws, meetings and the election of officers but the core requirement was that of representativity, the threshold of membership required to achieve recognition. The CLT had a relatively high representativity threshold, requiring proof of membership from one-third of the workers in the category. While achieving one-third was plausible in a single workplace, achieving it across the municipality could make union organizing a formidable task. In order to facilitate access to unionization, the Minister had the discretion to waive the one-third threshold in "exceptional circumstances" (exceptionalemente). In practice this discretion allowed the Minister to recognize ~ or not recognize — an applicant union according to the Minister's political preferences.

The second characteristic of the CLT regime was the union tax (imposto sindical, later known as the contribuicao sindical or union contribution).57 Since 1941, every worker in the formal sector, whether unionized or not, was required to pay the union tax through a payroll deduction in the amount of one day's pay each April. Employers were

CLT Article 565: each confederation was to be formed on a national basis by at least three federations; the most prominent was the Confederacao Nacional dos Trabalhadores da Industria (National Confederation of Industrial Workers) which was formed in 1948 at the instigation of the Dutra government. 56 The Ilheus/Itabuna STR, for example, applied for recognition in 1952 but recognition was not granted until 1957, when its leadership left the PCB. 57 CLT Article 592. The union tax was first introduced in 1941 and it continues to be collected, although legislation backed by the CUT is currently (2009) before Congress for its abolition. 131 required to remit the tax to Bank of Brazil from where it was distributed to the unions, federations, confederations and the Ministry of Labour according to the following formula: 60% to the union, 15% to the federation, 5% to the confederation, 20% to the Ministry.

The tax gave these union entities a degree of financial stability whether or not they maintained a membership base. Consequently, the unions came to rely on the tax instead of on contributions from rank and file members, often leading union activists to focus more on gaining office than mobilizing the membership, whether through an OLT or otherwise. A further consequence was that political parties with an active union membership ~ such as the PCB and the PTB -- were able to control a union executive without widespread support. This was the origin of the "populist unionism" thesis that was earlier mentioned in section 1.2.

The third characteristic was intervengao (intervention), a phenomenon which was considered in Chapter 3. Replacing elected leaders with pelegos and removing recognition were two instruments of intervention that the Ministry had available to

The CLT required the union tax and all union funds to be held in an account at the Caixa Economica Federal. This allowed the Ministry to freeze the union's accounts at any time and was a significant source of control. Alves, op. cit., fn 20, page 185. 59 This formula was based on the assumption that unionization would spread throughout the formal economy. There was a default formula so that if there was no union or no federation the higher body would receive a larger share of the tax, giving these higher bodies a disincentive to form new unions and federations. The 20% destined for the Ministry went into a "Special Account for Employment and Salaries" (Conta Especial Emprego e Salario), to be used by the Ministry in matters related to employment and unemployment. For this purpose the Ministry established the Fundo Social Sindical (Union Social Fund) which Segadas Vianna described as "an uninterrupted source of scandal" and "more noxious than useful to the cause of unionization". Segadas Vianna, O Estauto do Trabalhador Rural e sua Aplicacao (Comentarios a lei no. 4.214 de 2 de Marco de 1963). (Sao Paulo: Livraria Freitas Bastos S.A., 1965), pages 259 and 267. When Segadas Vianna was appointed Director of the DNT in 1943, he also became the chair of the CTOS, or Comissao Tecnica de Orientacao Sindical, the purpose of which was to promote the trabalhista project within the unions. The CTOS was allocated 25% of the union social fund to finance its activities:Angela Maria de Castro Gomes, A invencao do trabalhismo (Sao Paulo: Vertice ; Rio de Janeiro : IUPERJ, 1988), page 272. 132 control union leaders; a third way was barring specific union leaders from holding union office on political grounds. Finally the Ministry monitored union finances to ensure that the union tax was spent only for the limited purposes set out in the CLT and not for political purposes. All of this amounted to a system of state control — or a lack of union autonomy — which is broader than the notion of intervengao, although I use the term intervengao more inclusively as a shorthand reference to all of the political, administrative and financial control mechanisms that the Ministry had at its disposal.

As the CLT form of unionism suggests, a regime of industrial legality can be indistinguishable from a form of labour control. In the case of the CLT, the degree of control depended on the political regime. During the Fourth Republic, CLT unions enjoyed a high degree "of tolerated freedom, something that ought not to be confused with structurally based autonomy," but even this tolerated freedom was revoked by the military after 1964. At the time that ULTAB was engaged in organizing rural workers (1954 to 1964) rural unionism was a desirable structure because the political regime was unwilling or unable to exercise the full range of controls that were available. This explains why the agrarian social movement demanded the incorporation of rural unions under the CLT regime.

Juliao perceived that rural unionism posed a threat to the Liga form of organization; he reacted strategically by embracing rural unionism and encouraging a form of dual membership:

Recognition could be withdrawn on the formal grounds that the union ceased to satisfy the legal requirements of CLT Article 556, or on the political ground that the union "created obstacles to the execution of the government's economic policies". The original in Portuguese reads: ...criar obstaculos a execucao da politica economica adotada pelo Governo. 61 Maria Helena Moreira Alves, "Trade unions in Brazil: A search for Autonomy and Organization", in Edward C. Epstein, ed. Labor Autonomy and the State in Latin America (Unwin Hyman, Boston, 1989), page 45.

133 Peasants! Wherever there is a League found a union and wherever there is a union found a League.

While he encouraged dual membership, Juliao urged the rural unions to escape the control of the Minister of Labour and take guidance from the Ligas. For Juliao the demand for land reform ranked higher than the demand for labour rights:

Just as the unions struggle for wages, the League struggles for the land...Wages are hope, and the land is freedom. This is why the peasant must not be deluded by promises of money, but must fight for the land. Whoever fights for land is fighting for power; for power comes from the land...63

4.5 The campaign and the Revolution of 1930

The Municipality of Ilheus was the home of the Sindicato dos Empregados Agricolas de Ilheus/Pirangi (Union of Agricultural Employees of Ilheus/Pirangi), founded in 1934.64 This rural union, known as the Ilheus/Pirangi STR {Sindicato dos Trabalhadores Rurais or union of rural workers), was headquartered in the town of Pirangi (now Itajuipe) where a decade earlier the war of Sequeiro do Espinho had been fought.

We saw in section 1.3 that three union statutes were enacted in the decade following the Revolution of 1930. The 1931 statute was silent on the issue of rural workers, while the 1934 statute expressly contemplated the recognition of rural unions and federations, and even formally created a confederation of rural unions known as the Confederacao Nacional dos Trabalhadores na Agricultura e Pecudria' (National Confederation of Agricultural and Livestock Workers). The Ilheus/Pirangi STR was

Juliao, op.cit., fn 4, page 166. Juliao claimed that the Ligas had given birth to the rural unions; referring to the Ligas as the mother and the unions as the sons, Juliao preached that it would be a violation of the natural order for a son to leave his mother or for a mother to abandon her son. 63 IBID, page 166 64 Pirangi changed its name to Itajuipe in 1952 when the municipality was "emancipated" from Ilheus. Antonio Dias cited this as the birth of rural unionism in Brazil: see fn 1. 134 founded under the 1934 statute and it disappeared in 1939 when the statute of the Estado Novo excluded rural workers from coverage.65

The original initiative to found the Ilheus/Pirangi STR came from the local branch of the PCB. When Eusenio Lavigne became mayor (prefeito) of Ilheus in 1930, Ilheus became a relatively friendly space for the PCB. A party cell had been formed in Ilheus in by Nelson Schaun, a local teacher and journalist, and the son of a coronel.66 Schaun spread the party's message throughout the region and assisted in forming party cells in Itabuna, Pirangi (later Itajuipe) and Agua Preta (later Urucuca). (Another of the founding members of the Pirangi cell was Joachim Cunha Filho who later became president of the Ilheus/Pirangi STR.) Shaun and the Lavignes were close political associates. While Eusinio Lavigne served as mayor (prefeito) from 1930 to 1937, his brother Arturo edited a local newspaper, the Didrio da Tarde, where Schaun worked as a journalist. As allies of Vargas, the Lavignes supported the idea of rural unionism and they convinced some of the coroneis to bring working conditions on their fazendas into line with the new Ministry of Labour standards.

Decreto-Lei 1402 de 5 de Julho de 1939. For the history of unionism in Bahia in this period, see Jose Raimundo Fontes, "A Bahia de Todos os Trabalhadores: Classe Operaria, Sindicato e Politica (1930- 1947)," (unpublished doctoral dissertation, Universidade de Sao Paulo, 1977). 66 The role of the PCB (Brazilian Communist Party) was central to the effort to organize cacao workers, beginning in the period after 1930. Schaun was a descendent of the German families that settled the Rio Cachoeira colony in the early 19th century. In 1922 he founded the Sociedade Uniao Protetora dos Artistas e Operarios de Ilheus (Union Protective Society for Artisans and Workers of Ilheus) as a mutual aid society for workers from all sectors, and later became the regional leader of the PCB. Jorge Amado joined the PCB youth while attending law school in Rio de Janeiro. The year in which the first PCB cells were founded in the region is uncertain, although it may have been as early as 1927, the same year Amado joined the Communist youth. 67 Most of the narrative about the PCB in this period is taken from Marcelo da Silva Lins, "Os Vermelhos do Cacau: Comunistas no Eixo Ilheus/Itabuna (1935/1937)," (unpublished monograph, Universidade Estadual de Santa Cruz-UESC, 2004) and "Os vermelhos nas Terras do Cacau: a presence comunista no sul de Bahia (1935-1936)" (unpublished masters thesis, Universidade Federal de Bahia, 2007). Snippets of party activity can be gleaned from the chronicles ofJoao da Silva Campos: Cronica da Capitania de Sao Jorge dos Ilheus (Rio de Janeiro: Ministerio da Educacao e Cultura: Conselho Federal de Cultura, 1981). The Diario da Tarde was the unofficial organ for the governing party in Bahia, the PSD (Partido Socio Democratico or Social Democratic Party), which was founded by Juraci Magalhaes, Vargas's interventor as governor. The opposition party in Ilheus was known as the Autonomistas, headed in the region by Joao 135 Cunha Filho ~ from the Pirangi cell of the PCB — was an authentic cacao worker who arrived in the region from Sergipe at the age of sixteen and found work on a fazenda on the outskirts of Pirangi. Somehow he taught himself to read and write and this enabled him to find clerical work at the Ilheus-Conquista Railway, where he came into contact with the railway workers union, which was led by the PCB. The railway owners recognized his experience in cacao and assigned him to work as the administrador of one of their cacao fazendas, in which position he founded the Ilheus/Pirangi STR.68

Rural workers had the formal right to unionize. However, the STR was incapable of gaining official recognition because only workers who possessed a carteiro profissional (professional workbook) could join a union under the 1934 statute and few rural workers had the required document. This did not prevent the STR from launching a campaign for labour rights which focused on the eight hour day and the barracao, a regional truck system. The Lavignes used the union campaign to attack their political opposition, giving the union free publicity through the Diario da Tarde. Indeed, it appeared that Cunha Filho needed only send a telegram and the Lavignes would print it in the next edition.

The union campaign coincided with an initiative by the Ministry of Labour to extend the eight hour day progressively on a sector by sector basis. In Bahia the Ministry acted through a Regional Inspectorate (later delegagao or delegation) which was established in Salvador in 1935. In April 1935 an official from the Inspectorate arrived in

Mangabeira, who as a socialist was not anti-union, and Tavares and the Pessoas, who as coroneis likely were anti-unon. 68 Lins monograph, fn 67, page 32. Cunha was born in Itabaianinha, Sergipe and his first fazenda was located in Pedra Redonda, in the Municipality of Itabuna , near Pirangi. The railway union (Sindicato dos Trabalhadores na Estrada de Ferro Ilheus-Conquista), was led by Cantidio Lima de Oliveira, a PCB member. This union had engaged in a strike action in 1915, two years after the railway commenced operation and the union had supported a state-wide railway strike in 1927. It was operated by Stevenson and Company, the export house that owned a controlling share of the railway. The STR was headquartered in Pirangi (now Itajuipe) and it had a branch office in Agua Preta (now Urucuca). 136 Ilheus to encourage employers to implement the eight hour day and Cunha Filho used the occasion to draw attention to cacao workers. The Didrio da Tarde published a telegram in which Cunha Filho denounced the barracdo and complained that cacao workers were regularly required to work nine or ten hours a day.70 We will see in Part III that, according to the claims filed in the Vieira court, this remained the normal work day for cacao workers even after the eight hour day was enacted in the ETR.

The POS of the New Republic began to shift in 1935 with the formation of the ANL (Alianga Nacional Libertadora or National Liberation Alliance), a united left opposition with Luis Carlos Prestes as its honourary president.71 By May 1935, the ANL had established over 1600 local branches, including one in Ilheus which was led by Schaun and support by Eusinio Lavigne.73 In Ilheus the ANL joined forces with the Ilheus/Pirangi STR.74

The POS shift could also be seen on the right as the influence of a Brazilian fascist party, the Associagdo Integralista Brasileira (Brazilian Integralist Association), was increasing on the national scale. In the cacao region Integralismo found support among the coroneis and the sons of the coronets, including Adonias Filho who was the son of a Pirangi coronel. The Integralistas were headquartered in the center of Ilheus,

Silva Campos, op.cit., fh 67, page 484. The eight hour day was introduced gradually, sector by sector. 70 Lins monograph, fn 67, page 32 and Silva Campos, op.cit., fh 69 page 486. Cunha followed up a few days later with a complaint that several workers had been fired for refusing to make purchases at the fazenda dispensa or barracao and again his telegram was published in the Diario da Tarde. Prestes returned from Moscow accompanied by his future wife Olga, an agent of the Communist International, in May 1935. 72 Thomas E. Skidmore, Politics in Brazil. 1930-1964; an experiment in democracy (New York: Oxford University Press, 1967), page 21 73 Lins monograph, fn 67, pages 19 and 43. 74 Fontes, op.cit., fn 65, pages 337- 339. The PCB channelled its union work through a parallel organization, the Confederacao Sindical Unitaria do Brazil (United Union Confederation of Brazil), which was the working class arm (nucleo proletario) of the ANL. 75 For the story of Integralism in Ilheus, see Alvaro Souza de Araujo Neto, "Discurso e Pratica Autoritaria no Brasil", (unpublished monograph, UESC, 2005). In Bahia the Integralista strength was among the lawyers-in-training at the law faculty (Faculdade de Direito) in Salvador: Angelina Nobre Rolim Garcez, "Mechanismos de Formacao da Propriedade Cacaueira no Eixo Itabuna/Ilheus - 1890-1930," (unpublished masters thesis, Universidade Federal de Bahia, 1977), page 101. 137 but their regional stronghold was Itabuna, and they had branches in Pirangi and Agua Preta where the STR was also active. This led to street fighting in these locations between the Integralistas and the STR supporters, introducing an element of physical coercion against supporters of the STR campaign.77

Some of the coronets responded to the union campaign with accommodation

•jo rather than coercion, hoping to undermine the influence of the ANL. Coronel Avelino Fernandes put an end to the barracao that his administrador was operating and Laura Pimental Lavigne implemented the eight hour day on the Lavigne family fazendas. These were received as victories by the ANL and were reported as such in the Didrio da Tarde. Misael Tavares announced that he also would end the barracao on his fazendas, which was met with a cynical reaction from Cunha Filho because Tavares controlled a vast commercial network in any event. In another telegramme, Cunha Filho mockingly thanked Tavares for this "noble gesture", referring to him as "o grande capitalista", and suggesting that if he really cared about his workers he would implement the eight hour day and allow them to join the union.79

In June 1935, the union campaign caused the Ministry's Regional Inspector to announce an investigation into the working conditions of cacao workers, to which the coronets responded through a general assembly of the Associacao dos Agricultores (Growers Association). This association called on its members to implement the eight

Lins monograph, fn 67, page 21 77 The ANL responded to the Integralista threat by forming the Frente Unica Popular de Luta Contra o Integralismo (United Popular Front of Struggle against Integralismo).This Frente Unica clashed frequently with the Integralistas in various parts of the region. On June 30, 1935 the Frente Unica prevented the Integralistas from holding a passeata (demonstration or march) in Pirangi and when the passeata was re­ scheduled for mid-July it was broken up by the police. In August a street fight broke out in Pirangi between Integralistas and supporters of the STR. In Urucuca the head of the local Integralista party was assaulted and in Ilheus and Pontal the Integralista offices were bombed on August 8, 1935. This form of contention convinced many local supporters to abandon the Integralista movement: Silva Campos, op.cit., fn 67, page 488-491. 78 Silva Campos, op.cit., fn 67, page 486 79 Lins monograph, fn 67, page 34. The date of publication was June 22, 1935. 138 hour day and to keep their barracao prices in line with market value, and the general assembly resolution referred to the STR as "the legitimate interpreter of the aspirations of its class," despite the union's lack of official recognition. The coroneis forestalled an official investigation, but Cunha Filho overreached the bounds of coronel goodwill when a few days later he led a strike on a fazenda owned by Coronel Anacleto Alves da Silva and demanded that the Regional Inspector impose a collective agreement. This strike was ended by a police intervention and Cunha Filho was targeted as a potential security threat.

Q 1 The POS continued to contract. The ANL was banned in July 1935 when Vargas introduced his Lei Monstro (Monstrous Law) to create a political police to control dissidents. As a defensive measure, the PCB moved its Central Committee and its party organ --"A Classe Operand" -- to Salvador, leading to an increase in party activity in Ilheus, under Lavigne's limited protection. In November 1935, a PCB faction staged the Intentona Comunista (Communist Uprising), centered in the Northeast, to which Vargas responded by banning the PCB and increasing attacks against party members and union activists.84

The PCB was forced underground. While Schaun was imprisoned for two years, Cunha Filho continued the campaign on behalf of the STR. In April 1936 he attended the II Congresso Sindical de Trabalhadores Baianos (Second congress of Bahian Workers) in Salvador. The purpose of the Congress was to unite Bahian unions, but with the ANL

IBID, page 34. The original in Portuguese reads: ...interprete legitimo das aspiracoes de sua classe 81 The fazendeiro in question was Anacleto Alves da Silva who called in the police to end the strike. 82 The statute which created Vargas's political police was the Lei de Seguranca Nacional, known as the "Lei Monstro". The security police (DOPS) headquarters was originally located in Itabuna but it was moved to Ilheus in December 1936 because of communist activity: Silva Campos, op.cit., fn 67, page 497. 83 Lins monograph, fn 67, page 25 84 The Intentona Communista (Communist Uprising) began in Recife on November 23, 1935 and ended on November 27. 139 and the PCB both underground, the Congress was controlled by the Ministry. The Minister was represented by the Procurador Geral do Trabalho (Labour Procurator) Agripino Nazareth, a labour lawyer with a long history of involvement with the Banian

OS union movement. Nazareth began his union career as an anarchist and became a socialist before joining the Ministry in 1930. By 1936 he was a corporatist, favouring the "organic democracy" of the corporate state, and was representative of the social democrats who stayed with Vargas as the political regime changed. Cunha Filho enlisted the support of Nazareth in his campaign for the eight hour day, and as a result the Regional Delegate sent an inspector (fiscal) to Ilheus in September 1936 to open a local Oft office (sub-delegacao). The campaign eventually resulted in the establishment of a local junta (Junta de Conciliacao e Julgamento) in Ilheus in February 1939 and another junta in Pirangi in August 1939. These gains were short lived because the Estado Novo dissolved the STR in 1939 and the region's two juntas were extinguished on May 1, 1941 when Vargas introduced a more centralized system of Labour Justice.90 There was a "vacuum" on the political left in Ilheus from 1937 until 1945 when the PCB was once again legalized.91 Cunha Filho was imprisoned for several months at the start of the Estado Novo; when he resumed his activism in 1945 he turned his attention to municipal politics as a leader of the movement that led to the

There were speeches by Governor Magalaes and the Regional Inspector Claudio Tulio Lima. 86 For a biographical sketch of Nazareth, see Chapter 5, fn 22 87 Agripino Nazareth, "Sistema paritario dos Tribunals de Trabalho," Revista do Servico Publico (1939): 26-9. 88 When Cunha Filho returned home to Ilheus he telegrammed Nazareth and requested him to direct the Regional Inspector to enforce the eight hour day for agricultural workers and for construction workers in the city of Ilheus. Nazareth acknowledged receipt and in September 1936 an official arrived in Ilheus to open an Inspectorate sub-branch which would be staffed by a fiscal (inspector): Lins monograph, fn 67, page 31 89 The campaign of the FBPF for equality had its effects within the Ministry because the inspector was a woman, causing her arrival to be greeted as a triumph of "o feminismo":Si\va Campos, op.cit., fn 67, page 501 90 Fontes, op.cit., fn 65, page 242-247 91 Lins monograph, fn 67, page 50. The original in Portuguese reads: Ha um vacuo entre 1937 e 1945. 140 "emancipation" of the Municipality of Itajuipe (Pirangi) from the Municipality of Ilheus in 1952. His death in 1968 was eulogized by the Bahian federation of rural unions and the municipality named an elementary school in his honour, although he himself had never attended school. Nelson Schaun went underground when the Estado Novo was declared and was not heard of until again 1940 when a PCB representative from Salvador found him hiding in the forest. He was convinced to return to Ilheus where he resumed teaching until his death, which also occurred in 1968.

4.6 The campaign before the ETR

We saw that a new statute was enacted in 1939 which excluded rural workers from unionization. Although the statute promised that special legislation would later be enacted for rural unions, the exclusion of rural workers at this time was likely intended to ensure that the rural oligarchs would not oppose Vargas's industrialization strategy, which included the incorporation of workers in the formal economy through the official union structure. In order to ensure the success of this strategy, Vargas was prepared to cede control of productive relations in rural Brazil to the traditional oligarchs, while relying on the foreign earnings of agricultural exports to bolster investment in industry. The exclusion of rural workers from unionization was continued in 1943 when the 1939 statute was consolidated into the CLT. Vargas finally kept his promise in 1944 when special legislation was introduced which restored to rural workers the formal right to unionize. However, the structure of the 1944 statute indicates that the promise of unionization was intended to remain a mere legal fiction. The provisions of the 1944 statute mirrored the unicidade principle of the CLT, but the representativity requirement left recognition entirely within the discretion of the Minister to decide on a case by case

92 Emancipation refers to the creation of a new municipality when it is split off from an existing municipality to accommodate ascendant local elite. In the case of Itajuipe and Urucuca, as well as in the earlier case of Itabuna, the Ilheus elite actively opposed emancipation. 93 Decreto-Lei 7.038 de 10 de novembro de 1944. The establishement of a "Rural Association" (Associacao Rural) in every municipality was also provided for: see Decreto-Lei 7.449 de 9 de abril de 1945, modified by Decreto-Lei n. 8.127 de 24 de outobro 1945. 141 basis. Moreover rural unions had no access to the union tax. What made the intent of the statute clearest, however, was that the Minister had no power of intervengao, indicating that, in the context of the trabalhistas project, the prospect of rural unionization was not seriously contemplated at this time. Again the interests of the rural oligarchs prevailed, even within the trabalhista project: Vargas sought the electoral support of the urban working class through the CLT, while the rural oligarchs bolstered their control by excluding rural workers from the electoral process.

In 1951, in the state of Sao Paulo, the PCB began a campaign which led eventually to the formation of ULTAB.95 The campaign was to force growers to pay the minimum wage to rural workers, a labour right which Vargas had formally granted to all workers, including rural workers, in 1940. The PCB organizers were issued with the following instructions:

All forms of contention are good, just and necessary but they must always be struggles of the masses for the masses. In these conditions, just forms of struggle are those that range from petitions, small protests, partial strikes and everything up to and including armed struggle.

In order to appease the "entrenched legalism" of the rural population, the PCB relied on the 1944 statute to legitimate their organizing effort; in the case of sugar

The union recognition process was enacted by regulation (portaria) in March 1945, giving the Minister the broadest discretion possible to recognize an applicant or not. The discretion came from the requirement for representativity, which was described vaguely as "a number of members which assures the possibility for the entity to survive as an organization". The original in Portuguese reads: urn numero de associados que assegure possibilidade de vida e organizacao da entidade. MOL Portaria No. 44 de 19 de Marco de 1945. Only six rural unions — including the Ilheus/Itabuna STR — were recognized prior to 1962. See fn 102. 95 Uniao de Lavradores e Trabalhadores Agricolas do Brasil, or Union of Growers and Agricultural Workers of Brazil. 96 Oto Santos report, fn 35, page 53. The original in Portuguese reads: Todas as formas de luta sao boas, justas e necessarias. Mas devem ser sempre lutas das massas e para as massas. Nestas condicoes, Sao justas as lutas que vao desde os abaixo-assinados, os pequenos protestos, as greves parciais e todas, ate a luta armada.

142 workers, the PCB was able to use the CLT for this purpose because sugar workers who were employed on land belonging to a usina (sugar refinery) were not excluded from the CLT. The minimum wage campaign was also conducted among the coffee colonos of Sao Paulo97 and among Northeastern migrants who worked in Sao Paulo as diaristas in both sugar and coffee.

While the ULTAB initiative was focused on the state of Sao Paulo, a more modest PCB initiative met with even greater success in Ilheus, and the Ilheus initiative was acknowledged by ULTAB as the vanguard of organizing among salaried workers (assalariados) in rural Brazil. After the vacuum created by the Estado Novo, the thread of rural organizing in Ilheus was picked up by the PCB in 1951 when the party sent three organizers to the region: Carlos dos Santos Friederick," Arlindo Ambrosio Mateus and Carlos Oliveira Maia. They established a party Zone Committee (Comite Zonal do Sul de Bahia) and took up the task of organizing rural workers. They travelled the region disguised as itinerant peddlers and when exposed as union organizers they faced severe consequences.100 Their effort met with immediate success and within a year they founded an STR.

The founding of the Ilheus/Itabuna STR (Sindicato dos Empregados Rurais de Ilheus e Itabuna or Union of Rural Employees of Ilheus and Itabuna) can be traced to a preparatory assembly held in early 1952 and attended by 70 people. From there the work

The term "colono" here refers to European immigrants whose immigration to Brazil was subsidized to encourage them to work in agriculture, mainly in the coffee plantations of Sao Paulo. Colono immigration began in the 1850s and ended in the 1920s. 98 Terra Livre. Junho-Julho, 1954.1 thank cliff Welch for this reference. 99 Friederick was born in Austria in 1911. He immigrated to Brazil as a young man and joined the PCB. He also joined the navy and was one of the sailors who took part in Intentona Communista in 1935. Friederick was the key party organizer in the cacao region and he was later exposed as a military informant. At some point he allied himself with Admiral Heck who, as Minister of the Navy in the cabinet of Janio Quadros, opposed the succession of Joao Goulart when Quadros resigned in 1961. Friederick was later revealed to be a supporter of Admiral Heck's militaristic nationalism and, according to Antonio Dias, an informant to the military about political activities in the region. Interview with Antonio Dias, and see Dias, op.cit., fn 1. 100 For example, in one incident Mateus was captured by the police and subjected to a public thrashing, on the order of Coronel Arseno Alves, and in another incident union organizers were whipped in the presence of the workers. Dias, op.cit., fn 1, page 121 143 was carried forward to a founding meeting which took place on May 18, 1952 in the presence of 127 rural workers, who elected Friederick, Mateus and Maia as members of the first executive.101 The STR then launched an organizing drive. Within a month there were over 700 members and a few months later the membership had risen to 6000.102 Thirteen union offices were spread throughout the region.103 One of the organizers described his experience organizing cacao workers, indicating that the party and the union were closely identified with each other:

We would receive the party newspaper and we would travel to the farms where there was not even a lamp, we used a nearby splinter of wood to illuminate the newspaper which we used to read to them.104

Why was union organizing so successful among cacao workers? Various explanations are available, among them the management style of the coronets, the effectiveness of union organizers and the shared identity and understandings of cacao workers. However, the groundwork done in the campaign led by Cunha Filho during the New Republic was a significant factor; there was continuity in the campaign to organize cacao workers within which the Estado Novo was merely a hiatus.

101 According to the union's records, it was founded on May 18, 1952 and recognized by the Ministry of Labour on October 4, 1957. According to Welch, 29 rural unions applied for recognition prior to 1962 but only 5 rural unions were by 1955 and one more was added by 1962, which presumably refers to the Ilheus/Itabuna STR in 1957: see Welch, Seed, fn 2, page 95 10 The organizing method was to send the 127 founding members out to the fazendas as organizers and to pay them a stipend from the dues money they collected from new members. 103 Terra Livre. Junho-Julho 1954. Thanks again to Cliff Welch. 104 Otavino Alves da Silva joined the PCB in 1952 and soon became a member of the party's District Committee, a body which was subordinate to the Comite Zonal Ilheus: Valter Pomar, "Memoria Otavino Alves da Silva," Revista Teoria e Debate.24 (1994), page 20. The original in Portuguese reads: Recibiamos o jornal do partido e viajavamos pela roca, onde nao havia nem lamparina, usava-se lasca de madeira acesa para iluminar o jornal que liamos para eles. While working in construction in the town of Itapetinga, located south of Itabuna along the Rio Pardo, da Silva organized a cell of eight PCB militants at his construction workplace and they led a strike in 1954, with assistance from Friederick. The strikers claimed victory when the employer agreed to pay the minimum wage but da Silva was terminated because of his association with the PCB. 144 Soon after the STR was founded, its executive applied to the Ministry of Labour for recognition under the statute of 1944. The application was not well received at the Ministry and remained pending for the next five years, despite the fact that Vargas had expanded the POS when he became president in 1951 and that he tolerated "subversives" within the union movement. The Minister of Labour at the time of the application was Jose de Sagadas Vianna, who was strongly anti-communist. Although it was formally the Minister who blocked the recognition application, it is more likely that Vargas remained opposed to rural unionism in practice because when Segadas Viana was replaced by Joao Goulart in 1953 the application for recognition remained dormant.105 It was not until Goulart was President in 1962 that the campaign of the agrarian social movement forced open the recognition floodgate.

The Ilheus/Itabuna STR carried on its campaign for labour rights despite its failure to achieve official recognition. Itabuna was chosen as the union's headquarters and branch offices were spread throughout the region, in Ilheus, Urucuca, Itajuipe and elsewhere.106 During the period 1952 to 1956, the STR leaders built the strength of the union and participants in the campaign through various forms of contention, including strikes and marches (passeatas) through the streets of Ilheus and Itabuna.107 The union branch offices were based in the community rather than in the individual workplace. At

For an account of the tenure of Segadas Vianna and Goulart as Minister, see Lucilia de Almeida Neves Delgado, PTB : do getulismo ao reformismo (1945-1964). (Sao Paulo, SP: Marco Zero, 1989), page 115ff. Although known for his anti-communism, as Minister Segadas Vianna eliminated the requirement that union leaders sign a declaration of ideological orthodoxy (atestado ideological) before running for office: Lei no. 1606 de 19 de setembro de 1952. Segadas Vianna was a Vargas loyalist from the Estado Novo, but Vargas replaced him as Minister in 1953 and appointed Goulart in order to appease PTB union militants who were opposed to repressive measures taken by Segadas Vianna during an illegal strike. Segadas Vianna maintained an animosity towards Goulart thereafter: John D. French, Drowning in laws : labor law and Brazilian political culture (Chapel Hill: University of North Carolina Press, 2004), page 38 106 Pirangi and Agua Preta were included even though 1952 was the year of their "emancipation" as Itajuipe and Urucuca respectively. 107 The port workers union in Ilheus was controlled by the PTB but its members were very supportative of the demands of cacao workers. Dias, op.cit., fn 1, page 123 145 the Fazenda Mocambo, however, the union was able to establish a rudimentary OLT (workplace organization).108

The Ilheus/Itabuna STR was also integrated into the agrarian social movement on a national scale. For example, in August 1953, when Goulart was Minister of Labour, Vargas convened a National Conference on Social Welfare and Social Benefits in Rio de Janeiro, to which the STR sent a delegation. Out of this conference came a demand that the previdencia (social assistance) system be extended to rural workers. Having been recognized by the PCB as "the vanguard of organizing salaried rural workers in Brazil," a representative of the Ilheus/Itabuna STR was appointed to the presidency of the preparatory commission for the conference which led to the founding of ULTAB, and Friederick was elected to the ULTAB executive.110

In 1956, with the cacao economy in deep crisis, the Ilheus-Itabuna STR convened the // Conferencia Sul-Bahiana de Lavradores e Trabalhadores Argicolas da Zona Cacaueira (Second South Bahian Conference of Growers and Agricultural Workers of the Cacao Zone), under the auspices of ULTAB. The name of the conference suggests that ULTAB considered cacao workers and the family agriculture sector ~ burareiros and small growers ~ to have a common interest.111 The conference resulted in a demand that cacao workers be paid the minimum wage, to which they were legally entitled, and that both the minimum wage and the minimum price of cacao be raised for the benefit of rural workers and small growers.

Mocambo was a union stronghold because of its connection to the railroad and its PCB-led union. 109 James M. Malloy, The politics of social security in Brazil (Pittsburgh: University of Pittsburgh Press, 1979), page 95 Vargas agreed with this proposal and took steps to implement it prior to his death, but his successor Cafe Filho disagreed and brought this initiative to an end. Dias, op.cit., fn 1, page 123 and Malloy, pages 96 to 101. 1' The preparatory commission was called the Comissao Central Promotatora da II Conferencia Nacional de Trabalhadores Agricolas: Terra Livre. Junho-Julho 1954. 111 A thousand new members joined the STR in the lead up to the conference. Although 1500 delegates attended the conference, only 300 were STR delegates, out of a total union membership of 9000, suggesting that the family agriculture sector was well represented. 146 The momentum of the campaign for labour rights was lost as a result of events which occurred half way around the world when the 20th Congress of the Communist Party of the Soviet Union caused a split in the international communist movement.112 As a result of the split, the entire Comite Zonal of Ilheus left the party113 and in July 1957 "the Bahia Group" of PCB leaders issued a manifesto which accused the party of being bureaucratic and sectarian and accused Prestes of sacrificing Brazil's national interests in favour of the Comintern line.1 The Comite Zonal issued its own manifesto on July 19, 1957, over the signature of Nelson Schaun, Carlos dos Santos Friederick and others, in which it endorsed the manifesto of the Bahia Group and added an analysis specific to the cacao region, stressing nationalism and the regional interest:

[There is a ]...pro found generalized sentiment of nationalism in our region, economically oppressed by the trusts that, through the New York stock exchange, dictate the price of cacao and prevent broader trade relations on an equal footing with all countries.115

In this manifesto, the regional interest was equated with the cacao economy and a dependency approach was used to blame the oppression of cacao workers on the world system rather than the coronets. The authors of the manifesto argued that cacao workers were not ready to support socialism and that the party was wrong to dismiss the immediate demands of the region's workers as merely reformist. Finally the manifesto argued that workers and peasants in the cacao region saw no need for radical agrarian reform.

112 Like many communist parties around the world, there was a split in the PCB following Khrushchev's denunciation of Stalin's crimes at the 20th party congress of the CPSU in February 1956. 113 In 1956, da Silva was summoned to appear before the Comite Zonal in Itabuna and was advised that the party had ceased to exist. This was not literally true, but Agildo Barata and Pedro Mota were recruiting supporters to join them in the split. 1H Maria Schaun, ed. Nelson Schaun merece um livro: 100 anos de um personagem da historia politica e cultural de Ilheus (Ilheus, Bahia, Brasil: Editus, 2001), page 66 115 IBID, page 67. The original in Portuguese reads: ...profundo sentimento nacionalista generalizado em nossa regiao, oprimida economicamente pelos trustes que, atraves da Bolsa de Nova Iorque, ditam os precos do cacau e impedem o comercio amplo e em pe de igualdade com todos os paises 147 While Friederick, Mateus and Maia left the PCB, they maintained control of the Ilheus/Itabuna STR. On October 4, 1957, three months after the Comite Zonal manifesto, the Minister recognized the STR under the 1944 statute, making it one of only six rural unions to be recognized prior to 1962. Why was the STR recognized at that time after its application had remained outstanding for five years? One explanation is that the purpose was to prevent the spread of PCB influence. By recognizing the Ilheus/Itabuna STR the Minister effectively excluded the PCB from organizing cacao workers because of the rules of unicidade.116 After Schaun and Friederick issued their manifesto, the Ilheus/Itabuna STR came to be regarded as a defender of the regional interest rather than as a threat to the regional status quo.

Another explanation for the recognition of the STR was the logic of developmental nationalism. Brazil's developmental state needed organized labour as an ally. Consequently, after President Kubitschek created CEPLAC in January 1957, in April 1957 he ratified ILO Convention 11 of 1921, which called for freedom of association for agricultural workers. For the developmental nationalists, unionization was a normal part of industrial life, and the purpose of CEPLAC was to industrialize the cacao economy. The STR was no doubt the beneficiary of these arrangements.

The effect of recognition was to exclude the PCB from the cacao region, causing party organizers to concentrate their efforts in other parts of Bahia, including in Southern Bahia, where they formed a working alliance with the Ligas. However, there too they encountered opposition. Friederick later boasted:

116 At the time of recognition, Goulart was Vice-President and through this office maintained a high degree of influence within the Ministry of Labour. The Minister was Jose Parsifal Barroso from Ceara who had recently left the PSD (Kubitschek's party) to join the PTB (Goulart's party). Parsifal was a committed anti- communist and he owed his position as Minister to Goulart. Although Goulart was leader of the PTB, the left wing of the PTB within the union movement was in the process of consolidating an alliance with the PCB - the PTB-PCB alliance ~ while Goulart was concerned about the spreading of PCB influence and sought to maintain control of his own more centrist union base (dispositiva sindical). 117 Robert E. Price, Rural Unionization in Brazil (Madison, Wis.:, 1964), page 9. Price cited Decreto Legislative 24 de Abril de 1957. 148 ...when the communists tried to gain followers among peasants from Southern Bahia...I fought against them following instructions from members of the sixth military region and I managed to defeat them. Neither peasant leagues nor grupos das onze managed to organize in that area.118

Recognition marked the end of the STR's contentious campaign for labour rights. Although Friederick and his colleagues remained within the agrarian social movement, they rejected ULTAB and turned to the modernizing church elements for an alliance on the national scale. This switch in allegiance was symptomatic of a growing split within the agrarian social movement with ULTAB and the Ligas on one side and the church on the other. However, subsequent efforts to achieve unity within the social movement had an unexpected result, as we will see from the events which followed.

The attempt by ULTAB and the Ligas to achieve unity was focused on a congress in Belo Horizonte in November 1961 that was attended by over 1500 delegates; organizers from the reformist Church were in attendance, while few of the delegates were from the conservative Church. Unity was attempted around the programme of developmental nationalism. Although President Goulart attended the closing session a speech by Juliao calling for radical land reform was the congress highlight, moving Goulart to endorse Juliao's position. The congress ended on a note of unity by endorsing equally the demand for labour rights and the demand for land reform. After the

Dias, op.cit., fh 1, page 127. The report was addressed to the commander of the Vlth Military Region in Salvador in 1971. The Grupos das onze were PTB militants under the leadership of Leonel Brizola, Goulart's brother-in-law. Brizola was preparing for the 1965 election to succeed Goulart and within the PTB was rivalled by Miguel Amies, the Governor of Pernambuco, who shared his ambition to become president: Denis de Moraes, A Esquerda e o Golpe de 64 (Espaco e Tempo, Rio de Janeiro, 1989). 119 In November 1959, STR delegates attended the II Conferencia Sindical Nacional in Rio de Janeiro, during which the Ministry of Labour was accused of sabotage because there were 40 outstanding applications pending by rural unions which the Minister refused to recognize. Terra Livre. Janeiro 1960. 120 Goulart had become president two months earlier, and the Congress was held in the home state of his new Prime Minister, Tancredo Neves. I have been unable to confirm whether or not the Ilheus/Itabuna STR sent delegates to this congress. 121 Some scholars have suggested there was discord among the participants over which organizational form should be preferred and which aspect of agrarian reform ~ land or labour — should have priority. Welch 149 congress some discord arose within the camp of developmental nationalism when Goulart asked for Juliao's support in the Congressional elections scheduled for 1962 and Juliao 199 refused. Juliao later revealed that he considered Goulart's promise of labour rights to be a distraction from the demand for land reform and that Goulart's promise of rural 19"i unionism was meant to undermine the organizational autonomy of the Ligas. Goulart's support for the Belo Horizonte congress convinced the PCB that rural unionism was the preferred form of organization, rather than the association form which was favoured by the Ligas. In Sao Paulo ULTAB established FATAESP (Federagao de Associagdes de Trabalhadores Agricolas do Estado de Sao Paulo or Sao Paulo State Federation of Agrarian Workers Associations) which included rural unions in a federation which effectively excluded peasant associations. In Pernambuco, Gregorio Bezerra began to organize sugar workers into rural unions on behalf of ULTAB, beginning in his home town, the Municipality of Palmares, a region south of Recife where the Ligas were not yet active. In Bahia, ULTAB and the Ligas continued their working alliance and later in November 1961, after the Belo Horizonte congress, ULTAB convened the "First Conference of Small Farmers and Agricultural Workers of Bahia" in Salvador, with Juliao in attendance. In keeping with Juliao's preference that rural unions and peasant associations remain under the same umbrella, the Bahian federation was named FALTAB {Federagao das Associagdes de Lavradores e Trabalhadores Agricolas

argued that the congress succeeded in achieving an admirable degree of unity, while Azevedo interpreted the Congress as a victory for Juliao and the Ligas over ULTAB and the Church delegates. 122 Goulart had his eye on the congressional elections which were scheduled for October 1962. In exchange for his support for "radical land reform" Goulart hoped that Juliao would support the PTB in the coming elections. At Goulart's request they met privately after the congress but Juliao rejected Goulart's overture. Welch argued that Juliao became increasing isolated as the movement lined up behind Goulart's developmental nationalism while Juliao promoted a peasant revolution. Goulart's approach to regulating the ETR may have been designed to undermine the Ligas by making rural unions a more attractive alternative for Juliao's "peasant" members. 123 Juliao, op.cit., fn 4, page 165 1 The word association was used because the designation sindicato was restricted to entities recognized by the Minister. 150 da Bahia or Bahian Federation of Associations of Small Farmers and Agricultural Workers).

Faced with this renewed challenge from ULTAB and the Ligas, Friederick and his colleagues joined the Renovadores (Movimento Trabalhista Renovador or Trabalhista Reform Movement), an anti-communist movement led by Fernando Ferrari, a PTB Congressman who left the PTB in 1959 because Goulart was too tolerant of the PTB- PCB alliance.126 In taking up the Renovador banner, Friederick and his colleagues clearly aligned themselves with the anti-communist cause.

The CNBB (the Catholic bishops) also took up the STR as their preferred 197 organizational form. This initiative was supported by the bishop of Salvador and the 198 bishop of Ilheus, the Franciscan Dom Frei Caetano Lima dos Santos. In Pernambuco, Padre Melo also took up the cause of rural unionism, and he embraced the Ilheus/Itabuna STR because it was the only recognized STR in the entire Northeast region. With the support of Dom Frei Caetano, Padre Melo called on the STR to host a congress of rural workers which would counter the influence of the ULTAB-Lz'ga alliance. Dom Frei Caetano assigned a fellow Franciscan from Ilheus, Agnelo Vieira Bonfim, to head the organizing committee of the "First Congress of Workers and Growers of the North and 19Q Northeast of Brazil," which was convened in Itabuna in May 1962.

Price, op.cit., fn 117, page 60. According to Alves, the MTR won four congressional seats in the 1962 election: Alves, op. cit., fn 20, page 40. 126 Ferrari was a founding member of the PTB who was more ideologically committed to the political position of the British Labour party than personally loyal to Vargas. For an account of the founding of the MTR, see Neves Delgado, fh 105, page 61, and pages 212-215. Ferrari was a rival to Goulart in his home state of Rio Grande do Sul. As a Federal deputy he sponsored the legislative project which became the ETR. He was killed in an airplane accident a few months after its passage. Ferrari identified himself as a true trabalhista and an anti-communist. He ran against Goulart for vice-president in 1960 on behalf of the Christian Democrats, for which he was expelled by the PTB. For a collection of his speeches on rural workers, see Fernando Ferrari, Escravos da terra (Rio de Janeiro: EditoDra Globo, 1963) 127 The name of the bishop was Jeronimo de Sa Cavalcanti: Welch, Seed, fn 2, page 326 128 Frei Caetano may have had reformist sympathies since he later left the priesthood to get married. 129 According to Dias, 5000 delegates were in attendance: Dias, op.cit, fn 1, page 125. Navarro does not provide any estimate but presents this event as being of more modest proportions, although Dias had a 151 The Itabuna congress was focused on labour rights and the issue of land reform was not on the agenda. The organizers ensured that delegates from ULTAB and the Ligas were not invited but it appears from media reports that some delegates attempted to disrupt the atmosphere of social harmony that the organizers attempted to ensure.130 The dominant discourse was that of the regional interest, and cacao workers were urged to cooperate with the growers rather than engage in contention. For example, an Itabuna politician discouraged contention by telling the delegates that the large growers already respected labour rights, including the minimum wage, but the small growers would only be able to grant labour rights if productivity increased and cacao attracted a higher price in the international market.

The congress ended on a dramatic note when, during the outdoor closing address by Padre Melo, an airplane circled overhead and gave the impression that the gathering might be under attack. In fact, the Minister of Labour, Andre Franco Montoro, had flown in to attend the closing ceremony and with him he brought twenty-two letters of recognition for rural unions in the Northeast. In his address to the congress he promised that the process of union recognition had finally begun in earnest.132

Montoro was sincere in suggesting that his intention was to recognize rural unions but he was faced with the dilemma that the 1944 statute was still in effect, with no union tax and no power of intervengao. As Congress was not yet willing to enact a new statute, Montoro resolved the dilemma by enacting new regulations under the 1944 statute which better sense of its significance: Zander S. Navarro, "Movimentos Sociais em Areas Rurais do Sudeste da Bahia: As Lutas Sindicais no Periodo 1955/1964," Revolucoes Camponesas na America Latina.; Zander S. Navarro, "Movimento Rurais no Sudeste da Bahia (1955/1964)," Cadernos do CEAS 85: 14-23; Zander S. Navarro, "Capitalism and agricultural development in Brazil, the case of Southeast Bahia," (unpublished PhD dissertation, University of Sussex, 1981). 130 Diario de Itabuna, 12 de Maio de 1962. The name of the congress in Portuguese was "I Congresso dos Trabalhadores e Lavradores do Norte e Nordeste Brasileiro". 131 IBID. The politician in question was Jose Soares Pinheiro, known as Pinheirinho, who was associated with the ICB and was the first Embaixador do Cacau, representing Brazil at international meetings. 132 The closing session was held outdoors in the Praca Camaca in central Itabuna . Fearing an attack, Padre Melo advised his audience to take cover but as the plane headed for landing he learned that the Minister was on board. Dias, op.cit., fn 1, page 125 152 were designed to facilitate the recognition process, even without the power of intervengao. That the Minister intended to facilitate organizing was made obvious when he set the representativity threshold at fifty members, a very low number when rural workers often numbered in the thousands in a given municipality. In the competitive atmosphere of the time, ULTAB and the Church — and perhaps even a third group —were likely to file competing applications for the same territorial base, in which case the Minister would choose between the applicants according to a set of criteria that that effectively left the decision within his discretion. Montoro was a Christian Democrat from the conservative Church, making his choice of the Itabuna congress a natural forum for his surprise announcement. According to Welch:

So long as Montoro controlled the ministry, church-linked organizations stood the best chance of being recognized by the government.

In September 1962, a general strike by the CGT forced Congress to allow Goulart to appoint a nationalist cabinet of his choice. His choice for Minister of Labour was Joao Pinheiro Neto, a developmental nationalist and one of Goulart's close allies in the PTB.134 On November 20, Pinheiro replaced Montoro's regulations with a new set of regulations which were intended to give the Minister the power of intervengao. Since the 1944 statute gave the Minister no authority to enact regulations of this sort, Pinheiro used an indirect approach, requiring rural unions to enact by-laws in which they voluntarily gave the Minister this power as a condition of recognition. This strategy made clear the intention of the trabalhista elite that the Ministry would be able to control the rural unions; as a quid pro quo, and to accommodate the concerns of rural unions, the regulations directed Ministry staff to report within 90 days on how to incorporate rural workers into the union tax and the previdencia system.

133 Welch, "Keeping Communism Down", fn 2, page 34 134 Juliao considered Pinheiro to be "docile and demagogic" Juliao, op.cit., fn 4, page 163. However, he was bold enough to denounce US interference in Brazilian affairs, which forced Goulart to dismiss him three months after his appointment. 135 As a principle of law, regulations made without statutory authority were ultra vires, or beyond the legal authority of the Minister. 153 By November 1962, ULTAB and the Church were engaged in competing organizing campaigns in both the Northeast and the state of Sao Paulo, making the representativity issue a crucial factor in organizing. Unlike Montoro, Pinheiro was prepared to recognize any applicant that met the legal requirements, whether ULTAB, the Church or otherwise. The threshold of representativity remained at fifty members, but with the added requirement that the union elect its officers at a meeting open to everyone in the category, within 120 days of recognition. Although this provision showed a more even handed approach towards the competing organizers from ULTAB and the Church, organizers from the Ligas were undermined because among the four categories of rural workers set out in the regulations was that of produtores autonomos (autonomous producers), composed by the very peasants who formed the traditional target group for

1 %1 Ligas organizing. Now that this group was eligible for membership in a rural union, the organizational structure of the Ligas was potentially redundant. Pinheiro was not long at the Ministry but his involvement with rural organizing continued when Goulart appointed him as the first superintendent of SUPRA (Superintendencia de Politica Agrdria or Superintendence of Agrarian Policy), with a mandate to carry out land reform, to support rural unionization, and to register rural workers as voters. By involving the state directly in rural organizing and linking voter registration to labour rights, Goulart revealed his intention that rural workers be incorporated into the trabalhista project.

The competition between ULTAB and the Church became intense in the state of Sao Paulo when recognition became readily accessible. ULTAB's campaign in the Alta Mogiana region was led by Irineu Luis de Monies, a veteran of rural organizing for the PCB during the democratic interval, who returned to the region in 1960. On the other

136 The U.S. labour attache was John Fishburn, who lobbied Pinheiro to deny support to the PCB. Pinheiro remained pre-disposed to assist all applicants regardless of their political affiliation: Welch, "Keeping Communism Down", fn 2, page 35 137 The three other categories were field work (lavoura), ranching (pecuaria), extractive industries (lumber and rubber). 138 Decreto-Lei 11 de 11 de outobro de 1962. SUPRA was created as an autonomous agency within the Ministry of Agriculture, Pinheiro was appointed its first Superintendent. Price recounts some of the history of SUPRA: Price, op.cit., fn 117, pages 68-70 154 hand the church campaign was hampered by the division between the conservative modernizers and the reformists. For the reformists, Padre Celso Ibson de Syllos — a Jesuit born in the region but educated in Europe — directly challenged Moraes's initiative in the Alto Mogiana region. In 1962 Padre Celso received the approval of the local bishop to establish the FAP {Frente Agrdria Paulista or Sao Paulo Agrarian Front), with a mandate to organize rural workers across the state. The conservative campaign was led by Jose Rotta, the leader of the Catholic Workers Circles, whom Welch referred to as the "head of the church's conservative, harmony-oriented wing".140 Rotta was trained by the AIFLD, and like Padre Crespo in Pernambuco, he enjoyed the support of the Alliance for Progress.141

4.7 The campaign after the ETR

The POS began to shift in favour of the agrarian social movement when Goulart became president in August 1961. In the Congressional elections of 1962, the PTB almost doubled its support and became the second largest party in Congress,142 and in January 1963 the President's executive powers were restored by a referendum. Although these indicators pointed to the increasing strength of developmental nationalism, when Congress enacted the ETR in March 1963 — the legislation was sponsored in Congress by Fernando Ferrari, the founder of the Renovadores -- the political left was pleasantly surprised:

The bishop was Angelo Rossi of Riberao Preto. The FAP organizing method was called "City on a Hill," which Padre Celso used to train "strong natural leaders" who would lead from above with the "active, willing participation" of rural workers from below, with the goal of gaining union recognition: Welch, "Rivalry and Unification", fn 2, page 174. 140 Welch, "Keeping Communism Down" fn 2, page 34. The Catholic Workers Circles movement was founded in 1935, and at the time was associated with the Integralismo. 141 Welch, "Keeping Communism Down" fn 2, page 34. 142 Alves, op. cit., fn 20, page 40: The election gave the PTB 109 seats compared to 66 in 1958. In 1962 the PSD won 122 seats and the UDN 94. 143 See fn 125 and 126 155 It was almost a surprise, one could say, the promulgation of the law dealing with the Rural Worker Statute...The extension of social-labour legislation to the countryside and the legal protection of the rural worker — until today practically excluded from this protection, which has only favoured urban labour ~ has an economic and social reach which few legal documents have had amongst us prior to today.144

Caio Prado's assessment of the social and economic reach of the statute was overly optimistic because the agrarian structure was still dominated by the rural oligarchs and the agrarian social movement was not numerous or united enough to campaign successfully for labour rights in the social field where state law did not yet reach.

The ETR definition of "rural worker" revived the identity debate. Segadas Vianna thought the definition to be too broad because it included "each and every worker, whatever may be the form of contract and the system of payment."145 Caio Prado thought the definition to be too narrow because parceiros and arrendatdrios may have been excluded, depending on how it was interpreted by Labour Justice.146 We will see in Chapter 10 that Labour Justice developed the legal technique of "falsa (false) parceria" to distinguish between a rural worker and a true sharecropper relation.

The constitution gave the president the power to veto individual provisions of a statute after it was passed by Congress;1 7 President Goulart used his veto power with respect to the ETR for the purpose of facilitating union organizing. The version originally

Prado Jr., op.cit., fn 24, page 142. The original in Portuguese reads: Foi quase de surpresa, pode-se dizer, a promulgacao da lei dispondo sobre o Estatuto do Trabalhador Rural...A extensao da legislacao social-trabalhista para o campo e a protecao legal do trabalhador rural ~ ate hoje praticamente excluido dessa protecao que so vem favorecendo o trabalho urbano — tem um alcance economico e social que raros diplomas legais tiveram ate hoje entre nos.

145 Segadas Vianna, op. cit., fii 59 , page 82. The original in Portuguese reads: ...abrange todo e qualquer trabalhador, seja qual for a forma ou o tipo do contrato e o sistema de pagamento. 146 Prado Jr., op.cit., fn 24. 147 The presidential veto could be applied to an individual article in a statute or even to words within an article, subject to confirmation by Congress. 156 passed by Congress set the representativity threshold at 10%, which was relatively low when compared to the one-third required by the CLT. Goulart's opinion was that 10% was too high and would inhibit organizing. His response was to veto the 10% provision and leave a gap in the statute which he suggested should be left for the Minister to fill by regulation.148 This led Segadas Vianna to argue that any such regulation would be ultra vires as the Minister had no statutory authority to define a new threshold. While this argument may be dismissed as reflecting the legal positivism that was characteristic of the other authors of the CLT, Segadas Vianna also raised the substantive concern that a low threshold, such as the 1962 threshold of fifty members, would lead to the recognition of "phantom unions" {sindicatos-fantasma), with no substantive membership base. This concern proved to be well founded. The ETR regulations maintained the threshold at fifty members and this set off a competition to form as many rural unions as possible. 4

Another quirk in the ETR that caught the attention of Segadas Vianna was that recognition was retroactive to the date of application. He acknowledged the noble purpose of this provision, which was to alleviate the hardship of delay caused by the recognition process, but he questioned how this provision could be effective, especially in a situation involving competing applications. This concerned was also proven by subsequent events to be well-founded.

The ETR gave rural workers the same labour rights as workers in the formal economy, with some minor variations. With respect to collective rights, rural unions were structured around the same characteristics of unicidade, imposto sindical and intervencdo150 which defined their CLT counterparts and were subject to the same

148 The presidential vetoes to the ETR are set out in Adriano Campanhole, Legislacao do trabalho rural e Estatuto da Terra. (Sao Paulo: Editora Atlas S.A., 1966). The comments by Segadas Vianna on this veto and his comments below are at page 235 ff (op.cit., fn 59) 149 PortariaNo. 346 de 17 de 6 de 1963 (Ministry of Labour) 15 The burden of intervencao was more onerous for rural unions because they were required to submit a budget for approval before any monies were spent: ETR Article 134. Segadas Vianna pointed out that this was unworkable because of the slowness of the Ministry bureaucracy, and it violated the equal rights provisions of ILO Convention 11: Segadas Vianna, op.cit., fn 59, page 258 157 dissidio coletivo procedure in Labour Justice, which is discussed in Chapter 6. With respect to individual rights, the ETR consolidated the existing labour rights of rural workers, including the minimum wage, and expanded their labour rights to include everything that the CLT had to offer. The core labour rights of rural workers are discussed at length in Part HI, and Appendix C is a chart which identifies the individual labour rights available to rural workers and their statutory origin.

Almino Affonso, Minister of Labour when the ETR was enacted, issued his regulations in June 1963. An important feature of the regulations was the number of economic categories into which rural workers were divided. Separate unions were mandated in each category within the municipality and a separate category-specific federation in the state. The initial 1962 regulations established separate economic categories for field work, cattle raising, extractive industries, and autonomous producers. However, Affonso increased the categories from four to five by splitting the category of "autonomous producer" into two, creating one category for parceiros and arrendatdrios and another category for small landowners (minifundidrios). This effectively divided the Liga constituency and confirmed that the trabalhista elite intended to undermine the Ligas by supporting rural unionism as a less radical alternative. At the same time the introduction of these categories effectively broadened the definition of rural worker by regulation, at least for the purpose of organizing rural unions. The regulation was modified slightly in November 1963 to clarify that the Minister would recognize five federations in each state.

The enactment of the ETR had the immediate effect of creating an upsurge in rural organizing. Ironically, allowing "autonomous producers" to organize in the STR form had a "radicalizing effect on the union movement as a whole," at least in the state of Pernambuco. As Mallon notes:

151 PortariaNo. 531 de 11 de 11 de 1963 (Ministry of Labour) 158 As strikes multiplied in the second half of the year [1963] peasants and rural workers integrated their demands and tactics; all pressed for better working conditions, and all demanded agrarian reform...Moreover, there were several cases of rural workers who struck in sympathy with evicted peasants.152

According to Mallon, "the alliance of poor peasants and rural labourers" became "the most revolutionary force" in the months leading up to the coup. She credited the ULTAB unions with mediating this alliance and building a united front between rural and urban unions.

In Sao Paulo the effect of the ETR was to intensify the competition between ULTAB and the Church. Control of an STR was itself a goal worth contending over but the real prize that the ETR offered was control of the confederation of rural unions, referred to in the ETR as CONTAG (Confederagao Nacional dos Trabalhadores na Agricultura or National Confederation of Workers in Agriculture). When Amaury de Oliveira e Silva replaced Affonso as Labour Minister in June 1963, he announced that the founding convention of CONTAG would be held in Rio de Janeiro on December 20, 1963, and that each federation would have a single vote, without regard to the number of member unions or the number of rural workers who were enrolled in each union. The Minister advised that he would recognize up to five STRs in each municipality and up to five federations in each State, one for each category. A federation that met the formal requirements for recognition would be allowed to vote whether or not it had received recognition, except that if there were competing applicants for recognition as a federation neither applicant would have a vote. Five STRs were required to form a federation, although an applicant STR was counted as one of the five even if it had not yet been officially recognized.

152 Mallon, op.cit., fn 4, page 64 153 Bezerra organized the Palmares STR, which was recognized in January 1963, and from there ULTAB formed twenty-two STRs in neighbouring municipalities. There was a general strike of sugar workers in November 1963, led by the Palmares STR, which won support from all sectors, including Padre Mello and the PTB governor of Pernambuco, Miguel Arraes. The strikers settled for a wage increase of 80%, a pattern which Arraes imposed throughout the state: Mallon, op.cit., fn 4. 159 The Minister's announcement set off a scramble to gain control of CONTAG, the character of which is illustrated by the competition between ULTAB and Rotta in Sao Paulo. We saw that ULTAB had an existing federation in Sao Paulo — FATAESP — which they attempted to designate as a federation of field workers within the meaning of the ETR. FATAESP scheduled a meeting for September 8, 1963, in order to make the necessary organizational changes to satisfy the formal requirements. However, Rotta convened a convention in August at which he founded a rival federation which he called FETAESP (Federagao dos Trabalhadores Agricolas do Estado de Sao Paulo or Sao Paulo State Federation of Agrarian Workers) to represent the same category. To the surprise of ULTAB organizers, the Minister immediately granted recognition to Rotta's FETAESP, forcing ULTAB to disband FATAESP and focus on organizing federations in other categories. ULTAB ultimately succeeded in organizing twenty STRs in the parceiro and arrendatdrio category and applied for recognition of the corresponding federation less than a week before the CONTAG convention.154

A similar scramble took place in the cacao region, although the Ilheus Renovadores had no serious rivals with whom to contend. The Renovadores had established an STR in Urucuca before the scramble in May 1963, suggesting that the Urucuca STR had a legitimate membership base. After the scramble began, however, the Renovadores stepped up their efforts and by September 1963 they had established STRs in the Municipalities of Coaraci, Ipiau, Almadina, Ipitanga, Ibicarai, Camaca and Belmonte. Unlike the Ilheus/Itabuna STR and the Urucuca STR, these could fairly be described as "phantom unions." Nonetheless the Renovadores used these STRs to establish a federation for the economic category of field workers,155 known as FETAG

154 Welch, Seed, fn 6, page 322 155 According to Robert Price, the only STR in all of Bahia that was not a "phantom union" was the Ilheus/Itabuna STR, with 10.000 members out of a population of 150,000 cacao workers: Price, op. cit., fn 117. Price did not mention the Urucuca STR, which does not appear to have been a phantom union. His figure of 150,000 is the number of cacao workers in the entire region rather than just in Ilheus and Itabuna. His figure of 10,000 members was an estimate and is questionable as it seems unlikely that the STR maintained a membership base this large. 160 {Federagao dos Trabalhadores Agricolas or Federation of Agricultural Workers). Its founding meeting took place in Friederick's home in Itabuna on September 1, 1963, with Mateus as president, Friederick as First Secretary and Domingos Vincente Pereira as treasurer. Elsewhere in Bahia, however, ULTAB was unrivalled and it formed three federations to represent three of the four remaining categories, using a similar process.156

Bishop Sales convened a conference of rural unions in Natal in September 1963, in order to consolidate the Church's position. The results of this conference showed that the conservative church was losing ground to the reformists because the majority of delegates expressed support for developmental nationalism and the reformas bdsicas. FETAG delegates attended the conference but they were out of step with the Church majority. In an incoherent statement of dissent, FETAG expressed a paranoid anti- communist ideology, describing the Goulart government as

...a government that does not merit our support because it represents an oligarchy of large landowners and corrupt businessmen who favour the development of communism in our country and who, having dominated the country for so many years, are responsible for the entire situation of the misery of our families.157

The split within the Church between the conservatives and the reformists proved to be a decisive factor at the CONTAG founding convention. Twenty-nine federations attended the convention from nineteen different states, representing 743 STRs, only 263 of which were recognized by the Ministry.158 The Church controlled eighteen out of twenty-nine federations, but nine of these were controlled by the conservative modernizers and nine by the reformists; nine of the remaining federations were controlled by ULTAB. In the end developmental nationalism won out because the nine reformist federations sided with ULTAB. In order to avoid a split within the confederation, however, the delegates agreed on an executive slate which reflected the relative strength

156 Dias, op.cit., fn 5, page 126 157 IBID, page 61 158 Mallon, op.cit., fh 4, page 65. These figures may not be precisely accurate. 161 of the three factions (ULTAB, modernizers and reformist). ULTAB's president, Lindolfo Silva, became the president of CONTAG159and a delegate from FETAG (the Ilheus Renovadores) was elected Second Treasurer.160

4.8 The campaign and dictatorship

The military dictatorship brought an end to the ability of the agrarian social movement to campaign for agrarian reform, although the survival of the ETR and the Land Statute testified to the effectiveness of its campaign during the Fourth republic. In the case of labour rights, the dissidio individual remained available during the military rule to enforce individual labour rights while rural unions continued throughout the period to function as agents of mutuality, on the condition that they eschewed other forms of contention and accepted assitencialismo. Although the withdrawal of recognition and intervengdo crippled the rural unionism movement, CONTAG continued to function as a confederation of rural unions and the Minister began to recognize new rural unions and federations after fresh regulations were issued by Minister Sussekind in June 1965.161

Sussekind's regulations introduced two significant innovations in the recognition process. The first was that he reduced the number of categories from five to one, a single category of "rural worker". The effect of this innovation was to reduce dramatically the potential number of rural unions and federations and to reduce the divisions among rural workers by forging a new identity structured around the unifying concept of "rural worker". The second innovation was to raise the representativity threshold to one-third of the category, to bring it in line with the CLT, although, as was the case with the CLT, the Minister retained the discretion to waive the one-third threshold in "exceptional circumstances" (exceptionalemente). As a legal positivist, Sussekind could justify this

CONTAG was recognized by president Goulart in January 1964: Decreto-Lei 53.517 de 31 de Janeiro de 1964. 160 His name was Manoel Lito Muniz: Welch, Seed, fn 6, pages 322-325. 161 PortariaNo. 71 de 2 de Fevereiro de 1965 162 threshold as a legal necessity to fill the statutory gap created by Goulart's veto, since the provisions of the CLT applied to rural workers if they did not conflict with the provisions of the ETR. He could justify it on policy grounds because its purported purpose was to avoid the recognition of "phantom unions". However, on practical grounds, Sussekind knew or ought to have known that a one-third threshold was virtually impossible to reach and that the recognition of rural unions would therefore depend entirely on the Minister's discretion, as was the case with the CLT.

In Bahia, FETAG, the Ilheus/Itabuna STR and the Urucuca STR continued to operate without intervention. The Ilheus Renovadores welcomed the coup and endorsed the generals' anti-communist ideology. According to Antonio Dias:

All unionist actions and public statements of the FETAG in this period were based on the so-called revolutionary principles of 31 March.

The recognition of the three ULTAB federations was revoked, leaving FETAG as the only federation of rural unions in Bahia, and on August 6, 1965 FETAG was recognized as the exclusive federation for the entire category of "rural worker". This . gave FETAG access to the union tax. In the cacao region FETAG sent a team of agents into the field to assess the tax liability of individual fazendas. Collecting the union tax was later facilitated through the Land Statute, as we saw in section 3.5. Initially FETAG benefited from the withdrawal of recognition from Bahia's STRs because, in the absence of an STR, the STR share of the union tax went to the federation. FETAG used its relative prosperity to purchase a suite of offices on the fashionable Rua de Chile in

162 ETR Article 179 163 Dias, op.cit., fh 5, page 131 164 IBID, page 128 165 Antonio Dias described the process for collecting the union tax which FETAG carried out in the cacao region. Federation officials went from fazenda to fazenda, once a year, to enquire how many workers were employed and how much they earned, to calculate the tax which was payable at the rate of a day's pay per year. The union official would then issue an invoice and file a copy with the federal treasury which generated the fazendeiro's tax liability. This system was prone to compromise and corruption so the official and the fazendeiro often agreed on a reduced amount that the fazendeiro was prepared to pay. Interview with Antonio Dias. 163 Salvador, to purchase vehicles for its officers, and to hire a staff of lawyers, accountants and advisors. The Urucuca STR survived the coup and was recognized by the Ministry in November 1965166, but only six new rural unions were organized in Bahia from April 1964 to 1968. After 1968, the military introduced FUNRURAL, a fund established to provide social assistance to rural dwellers. The military began to encourage rural unionization and to co-opt the rural unions into becoming state apparatuses for the delivery of the assistance programmes that FUNRURAL was established to finance. FETAG responded to this initiative by organizing forty-nine new rural unions in Bahia by 1971.167

Friederick sought the protection of the military to carry on his work with the federation, and he received letters of attestation from Admiral Silvio Heck and General Olympio Mourao Filho, two of the coup leaders. Within FETAG, Friederick consolidated his position by turning against his colleague Mateus, who had offended nationalist sentiments within the Federation by accepting a trip to Washington under the auspices of the AIFLD in 1968; too close an association with the AIFLD was fatal for many union leaders as they were often voted out of office upon their return from Washington. In the case of Mateus, Friederick convinced the Ministry to declare him ineligible to hold office and Friederick emerged as the elected president of FETAG after the next election. This attack on Mateus was symptomatic of Friederick's misguided nationalism which later found expression in his relationship with Admiral Heck. Friederick used FETAG funds to support the Admiral's campaign to extend Brazil's territorial waters, and the Ministry of Labour reacted with intervengao in October 1971. Fresh federation elections

166 This date appears on the union letterhead. 167 Dias, op. cit., fh 5, page 132. From six or eight in 1969, the number of rural unions increased to twelve in 1970 and reached 54 in 1971. FUNRURAL was established in response to a strike by sugar workers in Pernambuco, led by Dom Helder Camaro, Padre Melo and Padre Crespo: Jarbas Goncalves Passarinho Um Hibrido Fertil (Rio de Janeiro, RJ: Expressao e Cultura, 1996), page 271 ff. For an analysis of the military's agrarian policy and the relation between FUNRURAL and rural unionism, see Peter P. Houtzager, "State and Unions in the Transformation of the Brazilian Countryside, 1964- 1979," Latin American Research Review 33.2 (1998): 103-42 168 Welch, "Labour Internationalism", fn 6 164 were held in July 1972 and a slate allied with CONTAG's president Jose Francisco da Silva was elected.169 The new executive initiated a change in political direction which eventually led FETAG into the "new unionism" movement.

The 1972 FETAG election marked a shift in FETAG's political orientation and foreshadowed CONTAG's drift towards the "new unionism" movement.170 Under CONTAG's orientation, FETAG conducted a series of regional meetings to gather information about working conditions, including a meeting for cacao workers which the Urucuca STR hosted from 24 to 29 September 1972.171 Cacao workers testified at this meeting that their labour rights were being constantly violated and that the region's STRs did little to help. According to a study conducted by CEPLAC around the time of the meeting, cacao workers were paid on average between 80% and 90% of the regional minimum wage.17

By 1972 the Ilheus/Itabuna STR had split into two separate unions, one in each municipality, and the Ilheus STR had adopted a bureaucratic approach to the claims of rural workers who came to the union for assistance. Union officials encouraged the settlement of claims for less than their book value and collected a fee from the settlement monies. Activists from the reformist Church worked directly with cacao workers in Ilheus and the surrounding municipalities and encouraged them to by-pass the STR and

CONTAG refused an invitation from Friederick to join this campaign so FETAG went on its own and sponsored a public meeting in Salvador on 27 November 1970, for which they flew in and hosted military officers from around the country. The story of Friederick is from Dias, op.cit., fn 5, page 130-135. 170 The story of CONTAG's involvement with the new unionism is told in Arilson Favareto, "Agricultores, Trabalhadores: os trinta anos do novo sindicalismo rural no Brasil," Revista Brasileira de Ciencias Sociais 21.62 outubre (2006): 27-44 171 Dias, op.cit., fn 5, page 138.1 was not able to locate the report of this meeting which may be somewhere in the CONTAG archives in Brasilia. 172 Ana Maria Bianchi dos Reis, Diagnostico Socio-Economico da Regiao Cacaueira: Mao-de-obra e elementos de relacoes de producao (Ilheus: CEPLAC, 1976). CEPLAC reported wage levels of Cr $ 5.47 when the two regional minimums were Cr$ 6.88 and Cr $ 6.08 165 go directly to the junta where their labour rights would be more fully vindicated. FETAG also began a process intended to revitalize Bahia's rural unions in March 1973 by convening a conference of STR leaders in Salvador. This conference reaffirmed FETAG's commitment to the demands of the agrarian social movement — labour rights and land reform, and marked the beginning of a return to a contentious approach.174

Nonetheless, in 1978, Amilcar Baiardi carried out field work in the region on behalf of CEP LAC and found that the plight of cacao workers had deteriorated sharply since 1963. Cacao workers were living in "pobreza absoluta" (absolute poverty), their situation was "acentuadamente grave " (emphatically serious), and their wages were well below the minimum wage.175 Those who resided on fazendas were not allowed to grow their own food and as a result workers and their families often went hungry. The STR was not perceived as a vehicle for contention and instead cacao workers waited passively for help from the fazendeiros or from the state to improve their condition.

4.9 Conclusion to Chapter 4.

The agrarian social movement offered a choice of identities — peasant or worker - - although the more inclusive identity of rural worker prevailed in the cacao region. A campaign for labour rights was launched during the New Republic and continued during the Fourth Republic by the Ilheus /Itabuna STR. While there was continuity in this campaign, the early success of this particular STR was attributable to the deployment of the rural worker identity and the relevance to cacao workers of the demand for labour rights. Although the cacao region provided fertile ground for organizing, the campaign

173 Dias, op.cit, fn 5 and see Equipe Rural CEAS, "A resistencia dos trabahadores do cacau," Cademos do CEAS.96 (1985): 19-25, and Trabalhadores do Cacau: Uma Presenca junto aos Assalariados Rurais (Salvador, Bahia: Suplemento dos Cademos do CEAS, 1990). 174 Dias, op.cit., fh 5, page 141-142. 175 Baiardi found that monthly wages ranged from Cr $ 2.800 to Cr $ 3.000 while the regional minimum wage was Cr $ 3.436,80. Baiardi, op.cit., fn 5, page 84 176 IBID, and see Salvador Dal Pozzo Trevizan, Aspectos Socio-Economicos da Mao-de-Obra na Cacauicultura Baiana, Boletim Tecnico 77 (Ilheus: CEPLAC, 1980), page 26 166 was driven by subjective factors, primarily the agency of "brokers" or activists from the PCB. The significance of these subjective factors became evident after the STR leadership abandoned contention and became self-interested.

The agrarian social movement achieved the enactment of the ETR through a contentious strategy that mobilized support at all levels, including members of Congress from various political parties. The developmental nationalists were allies of the agrarian social movement and agrarian reform was included in their package of reformas bdsicas. In exchange for its support for agrarian reform, the Goulart government extracted the electoral support of the agrarian social movement; when Juliao denied Goulart his support, Goulart's government undermined the Ligas by including Juliao's "peasants" within the organizational structure of rural unionism and the ETR. The policy of the Goulart government was to bring the rural unions within the control of the Ministry of Labour, on the same basis as the CLT unions. The approach taken by SUPRA to rural organizing demonstrates that the government's policy was to incorporate rural workers into the trabalhista project.

The impact of the ETR on rural workers was both significant and long term. The organizational form of the STR (rural unions) was defective because it did not require the growers to recognize a union presence at the workplace or fazenda level, through an OLT (workplace organization), which was one of three factors contributing to the problem of non-compliance with the ETR (see section 1.7). However, the rural union form brought both structural stability and financial viability to rural unions and transformed rural unionism from a movement into an institution. The positive and negative consequences of this transformation are difficult to assess because the POS (political opportunity stucture) shifted when the military took power, contributing to the problem of non­ compliance. The coercive approach of the military regime succeeded in transforming the rural unions into state apparatuses, while the objective social conditions that made rural Brazil a fertile ground for radical change remained. When the POS of the military regime

167 began to expand in the decade following the coup, the institutional structure of rural unionism proved to be of value as CONTAG shifted the rural unions towards the new unionism movement. Formal labour rights were the inheritance of the agrarian social movement and all that remained was to find a way to enforce labour rights in the social field.

From the trabalhista perspective, the extension of Labour Justice into rural Brazil was a logical progression, and whenever a local junta was installed in an area of rural organizing the agrarian social movement reacted positively by bringing claims to the junta for adjudication. We will see in Chapter 7 that the dissidio individual was a coherent form of contention, and the question for the rural unions was how to deploy the dissidio individual effectively in relation to other forms of contention. The approach of the military regime to contention provided a social experiment which showed the relation between the juridical field and the social field. In effect, the only form of contention permitted within the POS of the military regime was the dissidio individual, and the result was that cacao workers lived in deteriorating conditions of poverty without their core labour rights — including the minimum wage — being respected.

The Ilheus/Itabuna STR was an independent variable in this social experiment because, under the leadership of the Ilheus Renovadores, it eschewed contention of any kind, including the dissidio individual. By way of contrast, although Padre Melo (in the neighbouring state of Pernambuco) was a staunch anti-communist, he continued to engage in contention over labour rights, and as a result of his efforts and the renewed efforts of union activists, the rural unions from Pernambuco occupied the vanguard position in the revival of a rural union movement. In Bahia, however, when the union leaders eschewed contention they contributed to the problem of non-compliance with labour rights.

168 Part II: Labour Justice

Whereas Part I was concerned with the agrarian social movement in the social field, Part II is concerned with Labour Justice in the juridical field.1 We saw in Part 1 that the agrarian social movement campaigned for agrarian reform and that this campaign succeeded to the extent that the ETR was enacted in 1963, giving labour rights to rural workers. Although the agrarian social movement and its campaign were effectively halted by the military's Operagao Limpeza (Operation Cleanup) in 1964, rural workers continued to enjoy labour rights within the juridical field, to which we now turn. However, we should remain mindful that the problem of non-compliance with the ETR is attributable to three factors from outside of the juridical field, as set out in section 1.7. The purpose of this part is to demonstrate in general the extent to which labour rights were protected within the juridical field, while Part III will demonstrate that the Vieria court in particular did not contribute substantially to the problem of non-complaince in the cacao region.

This part begins with a description of the juridical field known as Labour Justice. Chapter 5 is structured around Bourdieu's premise that the relative autonomy of the juridical field is historically contingent; the approach in Chapter 5 is to trace the historical construction of Labour Justice from its origins to the beginning of the Fourth Republic when the Constitution of 1946 endowed Labour Justice with the same guarantees of independence that were enjoyed by the other branches of the judiciary. The chapter ends with an overview of the relation between the judiciary and the executive during the military regime, showing that the independence of Labour Justice was less compromised than that of the other judicial branches. Chapter 5 refers to the two forms of contention

The idea of contrasting the movement field to the juridical field is taken from Houtzager, who developed the approach in writing about the MST: Peter Houtzager, "The Movement of the Landless (MST), juridical field, and legal change in Brazil," in Boaventura de Sousa Santos and Cesar A. Rodriguez Garavito, eds. Law and globalization from below : towards a cosmopolitan legality (Cambridge, UK ; New York: Cambridge University Press, 2005) 169 that Labour Justice regulated, the dissidio coletivo (collective dispute) and the dissidio individual (individual dispute). Chapter 6 examines the dissidio coletivo and Chapter 7 examines the dissidio individual. While the dissidio coletivo was central to the relation between Labour Justice and the union movement, the dissidio individual was used by the agrarian social movement and by individual rural workers to protect labour rights.

170 Chapter 5: The juridical field

5.1 Introduction to Chapter 5

This chapter traces the construction of Labour Justice as a semi-autonomous juridical field from its origins in 1923 through to the 1946 constitution. The chapter then proceeds to consider the relation between the judiciary and the executive during the military regime, during the course of which Labour Justice maintained its formal autonomy but at the same time reinforced the system of hierarchy that characterized the new status quo, a tendency which Duncan Kennedy describes as inherent in the rule of law.2

The process of constructing Labour Justice as a juridical field was protracted. Over the course of a quarter century and through several changes in the political regime, Labour Justice gradually became an integral component of the trabalhista project. However, the trabalhistas did not originally intend that Labour Justice be independent from the control of the Ministry of Labour. Rather, the initiative to grant judicial status to Labour Justice came from the "pro-modernization" opponents of the trabalhista project, with a view to insulating it from the control of the Ministry of Labour, an important site of trabalhista influence.

Although Labour Justice was transferred to the judicial branch of government in 1946, it retained several characteristics which distinguished it from other branches of the judiciary. These characteristics were introduced step by step in a gradual process which began with the notion that, in their legal form, labour rights should be protected in a

2 Duncan Kennedy, A critique of adjudication : fin de siecle (Cambridge, Mass.: Harvard University Press, 1997), page 14. The transfer of Labour Justice from the executive branch to the judicial branch in 1946 purported to allow the labour judges to interpret and enforce the CLT "independently of the views of the executive", in conformity with Kennedy's definition of the rule of law. See section 1.4 171 quasi-judicial manner. The tracing of this process provides insight into the origins of Brazilian labour law and the nature of the trabalhista project.

5.2 The Lei Eloi Chaves

The first step in the construction of Labour Justice was taken in 1923 with the enactment of a law known as the Lei Eloi Chaves which applied only to railway workers.4 This law introduced three central elements of the CLT regime as it ultimately emerged: the previdencia (social security) system, the system of estabilidade (job security), and the system of Labour Justice. These three elements were inter-related and resulted from the need of the actuaries who designed the previdencia system for a degree of certainty which the concept of estabilidade provided; a worker's right to estabilidade was to be protected against arbitrary employer conduct by a requirement that a worker could not be terminated without an administrative inquiry (Inquerito Administrativo). Overall responsibility for these administrative inquiries was assigned to the Ministry of Agriculture, Industry and Commerce, but the adjudicative body established to carry them out was the progenitor of Labour Justice.

3 Lei 4.682 de 24 de Janeiro de 1923 4 Eloi Chaves was a Sao Paulo businessman, public servant, and a deputy in the Federal Congress. In 1917 he initiated an effort by Sao Paulo businessmen to negotiate an end to a general strike (Joel Wolfe, "Anarchist Ideology, Worker Practice: The 1917 General Strike and the Formation of Sao Paulo's Working Class," The Hispanic American Historical Review 71.4 (1991): 809-46). In 1923, he sponsored legislation in Congress to establish a contributory fund for each railway company which would provide its workers with social security benefits. The statute is reputed to have been drafted by the legal department of the Sao Paulo Railway Company (Cia Paulista de Estradas de Ferro). According to Arnaldo Sussekind, he asked Eloi Chaves why the notion of job security was introduced in a bill which was intended to deal with social security. Chaves responded that the idea came from the actuaries who advised him on the structure of the plan, as the actuaries required a predictable degree of stability to facilitate their calculation of fund liabilities: Magda Barros Biavaschi, "Entrevista com Ministro Arnaldo Sussekind, 20 de outubro de 2004, (Rio de Janeiro, 2004)", (viewed on November 21, 2008 at http://iframe.trt4.jus.br/portaltrt/ htm/memorial/menu/depoimentos/Entrevista%20%20com%20Arnaldo%20Sussekind%20- %2020%20de%20outubro%20de%202004.pdf). 172 5.3 The creation of the CNT

The second step also took place in 1923, three months after the enactment of the Lei Eloi Chaves, with the creation of the CNT {Conselho Nacional do Trabalho or National Labour Council).5 The original purpose of the CNT was to initiate domestic labour legislation and to oversee its implementation, in fulfillment of Brazil's obligations under the Treaty of Versailles.6 Responsibility for the CNT was assigned to the Ministry of Agriculture, Industry and Commerce, which gave to the CNT the added function of administering the Lei Eloi Chaves. Through their power to appoint its members, the last two presidents of the First Republic ensured that the CNT remained bi-partite, with representation from government and industry but without representation from organized labour,7 contrary to the tri-partite approach of the ILO (International Labour Organization).

5.4 The Federal jurisdiction

The third step was to amend the constitution of the First Republic (1891) in 1926 so that the Federal Congress gained exclusive jurisdiction "to legislate over labour matters," 8 as part of a package of amendments which limited the autonomy of the individual States and concentrated more power in the hands of the President of the Republic. The President sought the labour amendment so that the Federal state could

5 Decreto-Lei 16.027 de 30 de Abril de 1923. The origins of the CNT are discussed by Evaristo Moraes Filho in Evaristo de Moraes Filho, O problema do sindicato unico no Brasil: seus fundamentos sociologicos (Sao Paulo: Alfa-Omega,T978), at page 209. 6 Brazil was a signatory of the Treaty of Versailles, which ended the First World War and founded the International Labour organization (ILO) as a tri-partite response to the Bolshevik revolution. 7 The two presidents in question were Arthur Bernardes (1922-1926) and Washington Luis (1926-1930). 8 In 1926, the constitution was amended to return labour relations matters to federal jurisdiction. Article 34 paragraph 29 of the amended constitution provided that the Federal government had exclusive jurisdiction "to legislate over labour matters" (legislar sobre o trabalho). These changes are discussed in Moraes Filho, op. cit., fn 5, page 211. 9 This assessment is taken from Larissa Rosa Correa, "A greve contra a Carestia: trabalhadores em busca de um acordo coletivo na Justica do Trabalho - Sao Paulo, Setembro de 1954, 2007", (viewed online on November 21, 2008 at http://snh2007.anpuh.org/resources/content/anais/Larissa%20Rosa%20Correa.pdf). 173 begin to address the social question, holding out the promise that a popular cliche — "the social question is a police matter"10 — would soon become an anachronism or a relic of the Old Republic.

5.5 Tri-partism

The fourth step was to introduce the element of tri-partism into the enforcement of labour rights. This was brought about through the activism of the PCB,11 when the CNT accorded an unofficial role to PCB activists in the enforcement of the Lei de Ferias (Vacation Law), a Federal statute enacted in 1925 which gave workers in specific sectors (commerce, industry, banking and the media) an annual vacation of fifteen working days with pay. This legislation was resisted by employers and, as expected, the task of administering the legislation was assigned to the CNT. The CNT became a site of contention between public servants seeking to enforce state law and industrialists seeking to minimize their labour costs. The public servants came to consider certain activists within the labour movement as their allies in imposing the rule of law, at least with respect to the vacation pay issue.

In 1925, not all of the labour movement was prepared to collaborate with the CNT. Three tendencies were identifiable within the labour movement — anarcho- syndicalists, communists (PCB), social-democrats ~ and each approached labour law from a different perspective. The anarcho-syndicalists denounced the paid vacation law as an attempt by the state to demobilize the workers' movement so they remained aloof from the enforcement process. This approach proved to be a strategic error because most

10 The Portuguese version of this is "A questao social e caso de policia." The statement is often, and perhaps erroneously, attributed to president Washington Luis. 11 Formed in 1922, the PCB participated in electoral politics during the late years of the Old Republic through an electoral alliance known as the Bloco Operario, renamed in 1927 the Bloco Operario e Campesino. 12 This dicussion of the vacation law, the CNT, and orgainzed labour is taken from Kazumi Munakata, A legislacao trabalhista no Brasil (Sao Paulo, Brasil: Brasiliense, 1981). 13 As one would expect, there was also an organized Trotskyist tendency: Sergio Amad Costa, Estado e Controle Sindical no Brasil (Sao Paulo: T.A. Queiros, Editor, nd) 174 workers liked the idea of a paid vacation and they looked to the state law to protect this right against attack from their employers.

By contrast, the PCB was prepared to assume an advocacy role on behalf of workers. Its approach to the Lei de Ferias provided an early example of how various forms of contention — both within the institutions of state law and in the social field of the workplace — can complement each other in the enforcement of state law. The PCB instructed its activists to use the paid vacation issue as a mobilization strategy within the workplace and within the labour movement as a whole by using parallel organizations to encourage the state to enforce its own laws. OLTs (workplace organizations) took up the issue at the shop floor level14 and were in turn united across sectoral lines to form a central body.15 The PCB also contended politically through its Congressional deputy — elected in 1927 under a PCB-led united front known as the Bloco Operario e Campesinato (Workers and Peasants Block) — who raised the issue in Congress. Faced with the growing influence of the PCB, the CNT bureaucrats chose to accommodate the PCB campaign and introduced the element of tri-partism in the enforcement process through an informal alliance with the PCB-inspired Comite Central pro-Lei de Ferias (Central Committee in Favour of the Vacation Law). By 1930, however, the industrialists had regained the upper hand within the CNT and organized labour again became marginalized.16

These OLTs invented the carteira sytem — later incorporated into the CLT regime — with their "cadernetas de ferias" (vacation workbooks). The carteira system was first legislated in 1932: Decreto 21.175 de 21/3/1932, and later became part of the CLT regime and the ETR. 15 PCB activists formed Pro-Vacation Commissions (Comisoes pro-ferias) which in Sao Paulo were called Comite pro-Lei de Ferias or Pro-Vacation Law Committee. The commissions and committees formed central bodies in various states which in turn formed the Comite Central pro-Lei de Ferias (Central Committee for the Vacation Law) in Rio de Janeiro where the CNT was located. 16 According to Munakata, the effectiveness of the PCB campaign brought two innovations: first, the role of an autonomous trade union movement in the enforcement of labour rights was acknowledged for the first time, and second the legitimacy of a central union body (the Comite Central) was acknowledged for the first time. 175 5.6 The Ministry of Labour

The fifth step was to restructure the CNT under the aegis of the first Ministry of Labour, created by Vargas only one month after taking power, in November 1930.17 The responsibility for industry and commerce, including the CNT, was transferred from the Ministry of Agriculture to the new ministry which was formally known as the Ministry of Labour, Industry and Commerce.18

The Revolution of 1930 brought the exclusion of organized labour from the halls of state power to an end. It also persuaded the third current within the labour movement, the social-democrats, to join the Revolution of 1930 in order to advance their own labour agenda. The social-democrat strategy was to engage with the state to change the norms of state law and promote labour rights through the rule of law rather than through militant action in the social field. Many of these social-democrats ~ sometimes referred to as "yellow"19 and sometimes as "pink"20 — joined the Ministry of Labour and worked to address the "social question" through "social legislation", as Vargas promised.

This strategy of engagement led to significant advances in labour rights, beginning with the Revolution's labour legislation which Vargas decreed in February 1931, authorizing the Ministry of Labour to recognize the legal existence of trade unions, and giving existing unions the option either to seek recognition from the state or to continue to function outside the norms of state law. Initially the anarcho-syndicalists and the PCB avoided recognition, in part because the statute was directed against their leadership. However the pragmatism of the PCB ultimately prevailed and by early 1934

17 Decreto 19.433 de 26/11/1930. Vargas was invited by the military to head a provisional government which lasted until the constitution of the New Republic was promulgated in 1934. This constitution allowed Vargas to be elected president indirectly by Congress. 18 The responsibility for Industry and Commerce was transferred from the Minister of Agriculture to the Ministry of labour, bringing with it the CNT. 19 The term "yellow" was used by Angela de Castro Gomes in A invencao do trabalhismo (Sao Paulo: Venice; Rio de Janeiro : IUPERJ, 1988). 20 The more common designation in North America is "pink", which was used by John Dulles in John W. F. Dulles, Anarchists and Communists in Brazil, 1900-1935 (Austin: University of Texas Press, 1973). 176 9 1 the PCB unions had begun to seek recognition from the Ministry. The anarcho- syndicalists remained aloof and as a result became a spent force within organized labour. The Ministry of Labour, Industry and Commerce (referred to hereinafter as "the Ministry") carried out the function of regulating unions through the DNT (Departamento Nacional do Trabalho or National Labour Department) and the function of resolving disputes between unions and employers through the CNT. The CNT adopted a bifurcated structure from which evolved the two forms of contention which were characteristic of Labour Justice: dissidios coletivos (collective disputes) were assigned to Mixed Conciliation Commissions (Comissoes Mistas de Conciliagao) and dissidios individuals (individual disputes) were assigned to a tri-partite board or junta known as a Junta de Concilacaao e Julgamento (Board of Conciliation and Judgment), a precursor of the

The main purpose for forming official unions was to allow the PCB to participate in the constituent assembly and congress as representatives of these corporate bodies. 22 The DNT was created in 1918 and was transferred from Agriculture to Labour in February 1931 by Decreto 19.667 de 4/2/1931. The DNT was originally headed by Agripino Nazareth, a former anarchist who turned social-democrat and then pro-Vargas corporatist. Nazareth was a labour lawyer who was convicted of participating in an anarchist-led strike in Rio de Janeiro in 1919 and banished to Salvador. There he was active in the 1919 general strike and introduced the anarcho-sindicalist forms of organization that he had learned in Rio. He was a founder of a so-called "yellow" socialist (that is, social democratic) party in Salvador, and his political activities in Bahia led Governor J.J. Seabra to send him back to Rio in 1921. In 1930 he joined the Ministry of Labour where he remained until his retirement towards the end of the Estado Novo era. He was involved with the cacao workers as the pro-Vargas Procurador-geral do Trabalho in 1936, as we saw in Chapter 4, fn 88. For the story of his involvement in the 1919 general strike in Salvador, see Aldrin A. S. Castellucci, "Flutuacoes economicas, crise politica e greve geral na Bahia da Primeira Republica," Revista Brasileira de Historia 25.50 (2005): 131-66. For Nazareth's views on corporatism, see Agripino Nazareth, "Sistema paritario dos Tribunals de Trabalho," Revista do Servico Publico (1939): 26-9. 23 Decreto-Lei 21.396 de 12 de Maio de 1932. The powers of the CNT were altered in 1934 to reflect the changes anticipated in the new constitution: Decreto-Lei 27.742 de Junho de 1934. 24 The structure of the CNT was legislated by Decreto 22.132 de 25 de novembro de 1932. Decisions of the juntas were subject to an administrative appeal to the Minister. In the course of the appeal process, the Minister sought the advice of his Consultor Juridico (Legal Consultant) whose opinions were issued in writing. According to Sussekind, most of these opinions were written by Oliveira Viana and his opinions were among the sources which were consolidated or codified in the CLT. This function of reviewing the decisions of the juntas was carried out by the DNT which was responsible for the enforcement of junta decisions in the civil courts. The DNT also appointed the vogais who sat as members of the juntas. This information is based on Rinaldo Varussa's history: Rinaldo Jose Varussa, "Legislacao e Trabalho: experiencias de trabalhadores na Justica do Trabalho (Jundiai, SP, decadas de 1940 a I960)," (unpublished doctoral dissertation, PUC/SP, 2002), page 26, note 38. My thanks to Marcelo Badaro for this reference and my thanks to the author for providing a copy of his dissertation. 177 Vieira court. Voluntarism was initially a feature of these two legal forms ~ the dissidio coletivo and the dissidio individual — because the decisions of the juntas in individual disputes were not enforceable except through the civil courts, at the instance of the Ministry, and the recommendations of the conciliation commissions were purely advisory.

5.7 A specialized tribunal

The sixth step was to entrench the notion of a specialized labour tribunal in the constitution of the New Republic which was proclaimed by a Constituent Assembly in 1934. This constitution was the first to include a set of "social rights" ~ a term which included labour rights — which the government was called on to enact through "social legislation." The constitution called for the creation of a system of Labour Justice:

... to determine questions between employers and employees, regulated by social legislation.25

According to the constitution, Labour Justice would be a tri-partite body within the executive power. Consequently its judges were excluded from the constitutional provisions designed to protect the autonomy of the judicial power. The "class judges" (juiz classista), known at the local junta level as "vogais" (yogal in the singular), would be nominated by the official union and employer entities respectively but the neutral judges would be appointed for a fixed term (two years) by the President of the Republic. These constitutional provisions sat well with Vargas because they effectively insulated

25 Article 122 of the Constitution of 1934. The original in Portuguese reads: ...para dirimir questoes entre empregadores e empregados, regidas pela legislacao social. Article 122 in full reads as follows: Art 122 - Para dirimir questoes entre empregadores e empregados, regidas pela legislacao social, fica instituida a Justica do Trabalho, a qual nao se aplica o disposto no Capitulo IV do Titulo I. For more background on the debate over this provision, see Irany Ferrari, Amauri Mascaro Nascimento, and Ives Gandra da Silva Martins Filho, Historia do Trabalho do Direito do Trabalho e da Justica do Trabalho (Sao Paulo: Editora LTR, nd), page 184

178 him from contention between unions and employers while leaving him with control over labour issues through his power to appoint the labour judges.

The notion that labour rights should be entrusted to a specialized tribunal was historically significant. In the Constituent Assembly, the argument in favour of a specialized tribunal was advanced by Levi Carneiro, one of Brazil's most eminent jurists.26 Carneiro argued against the legal positivism that was prominent among Brazilian jurists and disparaged the civil courts as overly positivist and lacking in the specialized knowledge required to resolve workplace disputes with the expedition required by the ongoing nature of the employment relation.

Carneiro's argument failed to acknowledge that, as administrative tribunal, Labour Justice lacked a mechanism to enforce its own judgments. This had two negative consequences for Labour Justice. First, the decision whether or not to seek enforcement was in the hands of the DNT which monitored junta decisions and had carriage of a process of administrative appeals to the Minister, based on the opinions of his legal counsel (consultor juridica), the most prominent of which was Oliveira Viana. Viana's opinions were considered to be authoritative and were later used as a source by the 97 authors of the CLT. Second, the power of enforcement remained in the hands of the civil courts. The civil judges were able to retain control over labour disputes by treating an enforcement application as a trial de novo. They often disagreed with Labour Justice on points of law, effectively demonstrating the validity of Carneiro's argument.

Carneiro was a practicing lawyer from Rio de Janeiro who later became president of the Ordem dos Advogados do Brasil (Order of Brazilian Lawyers) and still later a judge on the Permanent Court of Arbitration in The Hague. Ferrari et al, op. cit., fn 25, page 183. 27 In his interviews with Judge Biavaschi, Sussekind identified five sources for the normative scheme of the CLT: the papal encyclical Rerum Novarum; the Primeiro Congresso Brasileiro de Direito Social (First Brazilian Congress of Social Law); the conventions and recommendations of the ILO; modern Western constitutions, including Mexico; and the published opinions of Brazilian jurists, the most influential of whom was Oliveira Viana, who also headed the team which drafted the union laws of 1934 and 1937. These interviews are available on line: see fn 4. 179 A particular focus of contention between Labour Justice and the civil judges was the requirement that employers give workers notice of termination or pay in lieu of notice. This requirement was a matter of contract law, introduced in the nineteenth century — to protect employers at a time when "free labour" was a scarce commodity — and incorporated into the Civil Code in 1916. Another requirement was to provide severance pay (indenizacao de antiguidade) in the manner originally required by the Lei Eloi Chaves, which was considered to be social legislation rather than a matter of contract. CNT juntas which heard unjust dismissal cases routinely awarded both severance pay and termination pay to a successful claimant but when enforcement proceedings were brought in the civil courts the judges refused to acknowledge the jurisdiction of a junta over termination pay and insisted that the matter be re-litigated according to the procedural requirements of the Code of Civil Procedure. This stand-off continued until 1942 when Vargas decreed that notice of termination was deemed to be "social legislation" and therefore within the jurisdiction of Labour Justice.28

5.8 The normative power

The seventh step was to introduce the notion of the "normative power" which gave Labour Justice the jurisdiction to impose terms and conditions of employment in order to resolve a dissidio coletivo (collective dispute). The 1934 constitution made no mention of the normative power. Its source was the draft legislation introduced by Oliveira Viana, the original architect of the system of Labour Justice. When Oliveira Viana's draft legislation went to Congress in December 1935 the industrialists were shocked to realize that Labour Justice would be given the power to impose collective

28 Decreto-lei 4.037 de 19 de Janeiro 1942. Biavaschi discusses this issue at length and attributes this solution to the advice of the Minister, Alexandre Marcondes Filho: Magda Barros Biavaschi, "O Direito do Trabalho no Brasil- 1930/1942: a construcao do sujeito de direitos trabalhistas," (unpublished doctoral dissertation, Universidade Estadual de Campinas- UNICAMP, 2005), page 217. 180 agreements, a matter which previously had been strictly voluntary. Vigorous opposition was mounted in Congress to preserve the cherished notion of freedom of contract.

Employer opposition to the normative power should be understood in the context of 1935, the year of the Lei Monstro (Monstrous Law) which drove the PCB underground:

The repression of communism made unviable any type of independent action coming from within the working class. A long silence began in 1935, was reinforced in 1937, and lasted almost until 1942.30

The PCB's long silence, from 1935 to 1942, meant that organized labour was not a party to the debate over the normative power because the anarcho-sindicalists were a spent force and the social democrats were co-opted by their association with Vargas. The opposition to the normative power was therefore led by liberal industrialists who had the upper hand under a regime of voluntarism because of their alliance with the police. In this logic of liberal voluntarism, the normative power violated freedom of contract and the use of state law should be restricted to protecting property and freedom of contract.31 In Congress the voluntarist cause was taken up by Waldemar Ferreira, a professor of commercial law at the University of Sao Paulo, who staged a filibuster. Ferreira argued that the normative power was unconstitutional because the right to enact "social legislation" belonged exclusively to Congress and the normative power was tantamount to delegating this legislative function to Labour Justice.

For a discussion of the right to strike and the Lei Monstro (Lei no. 38 de 4 de abril de 1935), the security legislation, see Marcelo Badaro Mattos, "Greves, sindicatos e repressao policial no Rio de Janeiro (1954- 1964)," Revista Brasileira de Historia 24.47 (2004): 241-70. 30 Castro Gomes, Invencao. fn 19, page 192. The original in Portuguese reads: A repressao ao comunismo turnaria inviavel qualquer tipo de accao independente surgido do interior da classe trabalhadora. Um longo silencio tive inicio em 1935, reforcando-se em 1937 e perdurando praticamente ate 1942. 31 According to Cesar Rodriguez Garavito, this typifies the neoliberal approach to the rule of law: Cesar A. Rodriguez Garavito, "Globalizacion, reforma judicial y estado de derecho en Colombia y America Latina: el regresso de los programas de derecho y desarrollo", in Rodrigo Uprimny, Cesar A. Rodriguez Garavito, and Mauricio Garcia Villegas, ^Justicia para todos? : sistema judicial, derechos sociales y democracia en Colombia (Bogota: Grupo Editorial Norma, 2006). 181 The liberal voluntarist argument was opposed by those who favoured corporatism as a means of resolving the social question, and the debate over the normative power brought liberalism and corporativism into contention. In Europe corporatism had taken on the specific form of fascism but in Brazil the corporatist ideal had a broader social base which included social democrats such as Agripino Nazareth who had joined Vargas in the Revolution of 1930. Rather than indulge the (neo) liberal side of this inter-elite debate, Vargas dissolved Congress and, with the support of the generals ~ including Marshal Eurico Dutra who later succeeded Vargas as President ~ imposed the constitution of the Estado Novo.

5.9 The right to strike

The eighth step was to accommodate the liberal voluntarist lobby by linking the normative power directly to the right to strike, which up to this point was a matter for the police rather than for labour law. This linkage was obvious in the constitution of the Estado Novo which first repeated the clause from the 1934 constitution which called for the establishment of Labour Justice — "... to determine questions between employers and employees, regulated by social legislation" — and then immediately after added the following sub-clause:

Strikes and lock-outs are hereby prohibited, and are considered anti-social measures, noxious to capital and labour and prejudicial to the superior interests of the Nation.34

Ferrari et al, op. cit., fh 25, page 187 33 The clause is reproduced above in fn 25. 34 Quoted by Carlos Bosisio in "O declinio do sindicalismo corporativo," in Gomes, Angela Maria de Castro and Amaury de Sousa, Trabalho e previdencia : sessenta anos em debate (Rio de Janeiro: Editora de Fundacao Getulio Vargas : CPDOC, 1992), page 149. The original in Portuguese reads: Fica proibida a greve e o locaute, considerados recursos anti-sociais, nocivos ao capital e trabalho e prejudiciais aos superiores interesses da Nacao. Prior to the Estado Novo, the right to strike had been restricted by the Lei Monstro (Monstrous Law), which criminalized strikes in the public service or in essentail services: Badaro Mattos, op. cit, fn 29, page 257 182 With his new constitution in place and with Congress dissolved, Vargas returned or the Labour Justice file to Oliveira Viana. His draft legislation, that had been stalled in Congress, was finally decreed into law in 1939 and Labour Justice was formally launched by President Vargas on May 1, 1941.37

In this initial implementation of the Labour Justice system, labour judges had a degree of independence from the Ministry of Labour but were denied the formal autonomy enjoyed by the judicial branch because they were administratively subordinate to the Ministry of Labour and were appointed for only a two year renewable term. The CNT was continued as an appeal tribunal in Rio de Janeiro and regional counterparts were established in the major state capitals, including Salvador, with Bahia as the 5th

ID region. The existingjuntas were extinguished (including the ones in Ilheus and Pirangi) and new juntas were created in various urban centers, including Salvador but not Ilheus or elsewhere in the cacao region. The office of the Procurador do Trabalho (Labour Procurator), the liaison between the Ministry and Labour Justice, was also restructured to mirror the regional structure of Labour Justice.

Oliveira Viana acted as an advisor to Vargas, but Walter Falcao was the first Minister of Labour in the Estado Novo, and he was closely aligned with the Catholic Church. Castro Gomes provided a biographical sketch of Falcao in Invencao. fn 19, page 199. 36 Deceto-Lei 1.237 de 2 Maio de 1939. 37 Castro Gomes, Invencao. fn 19, pages 199-200. This is an indispensable source for the trabalhista project. Waldemar Falcao was replaced as Minister by Alexandre Marcondes Filho in December 1941, which marked the beginning of the trabalhismo project. Marcondes Filho was a commercial lawyer from Sao Paulo, specializing in bankruptcy law and his clients and associates were members of the industrial elite of Sao Paulo. Arnoldo Sussekind had been the regional procurator in Sao Paulo when he was called to the minister's office as his personal advisor on labour matters. Jose Segadas Vianna became head of the DNT in 1943 and was assigned to find a renewed pelego union leadership to lend credibility to the trabalhista project and to organize the PTB among the urban working class. 38 The seat of the fifth region was Salvador but its jurisdiction originally included the neighbouring state of Sergipe. 39 Decreto-lei 1.346 de 15 de junho de 1939. Although this office had existed since the CNT structure was established in 1932, its role was enhanced in 1939 under the Estado Novo. In the 1946 constitution, the office was placed under the Ministerio Publico do Trabalho, or Public Ministry of Labour, a branch of the Ministerio Publico da Uniao. The procurator's office had standing to initiate and to take carriage of collective disputes and to intervene in the appeal of individual disputes. 183 5.10 The 1946 constitution

The ninth step was to transfer Labour Justice from the executive branch to the judicial branch during the redemocratization process in which the Estado Novo was replaced by a liberal state.

After Vargas was deposed, President Dutra took office in January 1946 and the constitution of the Fourth Republic was proclaimed by a Constituent Assembly on September 18, 1946.40 The constitution established a liberal state with a system of multi­ party democracy at all three levels of government —federal, state and municipal. The constitution provided for a separation of powers between the executive, legislative and judicial branches, and protected the autonomy of the judicial branch. Judges were appointed for life (until age 70) and the judiciary enjoyed administrative autonomy, immunizing judges from being transferred or have their salaries reduced arbitrarily by the executive.41 The authority of the Ministry of Labour was reduced under the constitution because the procurador was transferred from the Ministry of Labour to the Ministerio Publico and Labour Justice became one of five branches of the Federal judiciary.42 The inclusion of Labour Justice in the judicial branch marked the culmination of a long process of constructing Labour Justice as a semi-autonomous juridical field.

The effect — if not the purpose ~ of removing Labour Justice from the control of the Minister of Labour was to reduce the influence of Vargas and the PTB. Ministry

40 This process of redemocratization is open to various interpretations but for our purposes the most interesting is that of Evaristo Giovanetti Netto because he wrote from the perspective of the participation of the PCB: Evaristo Giovanetti Netto, A bancada do PCB na Assembleia Constituinte de 1946 (Editora Novos Rumos, Sao Paulo, 1986). These provisions were contained in Chapter IV of the 1946 constitution.

42 The other four branches of the judiciary were the STF (Supremo Tribunal Federal), the Tribunal Federal de Recursos, the Juizes e Tribunals Militares and the Juizes e Tribunals Eleitorais. The STF (Supremo Tribunal Federal) was the equivalent of a Supreme Court while the Tribunal Federal de Recursos heard ordinary appeals, both civil and criminal, from the state-level appointed judges, that is, the district judges Guiz de dereito) in civil and criminal proceedings who were appointed by the state-level governments.

184 officials, led by Jose Segadas Vianna as the head of the DNT, were closely allied with Vargas and the PTB so by establishing an independent labour judiciary the Constituent Assembly diminished their ability to implement the trabalhista project. Although Dutra had helped Vargas impose the Estado Novo in 1937, and had served in his Estado Novo cabinet, by 1946 he was ready to join the Cold War as an ally of the U.S. and to open up the Brazilian economy to foreign investment. His economic policies were "pro- modernization," though his authoritarian instincts led him to retain the corporatist structure of the CLT in order to appease the PTB and to reduce communist influence within the union movement. In order to ensure a smooth transition to a semi-autonomous Labour Justice with a normative power to control wages and reduce labour strife, Dutra recruited the president of the CNT, Geraldo Montedonio Bezerra de Menezes (known as Judge Bezerra) to draft legislation to regulate Labour Justice, which he decreed in advance of the new constitution, thereby presenting Congress with a, fait accompli.

5.11 An independent judiciary

The tenth and final step was to appoint an independent labour judiciary so that Labour Justice could begin to function as a juridical field. This step was taken by President Dutra ten days prior to the proclamation of the new constitution when he decreed Judge Bezerra's draft legislation as state law. The TST (Tribunal Superior do Trabalho or Superior Labour Tribunal) succeeded the CNT as the central body of Labour Justice44 and Dutra immediately appointed Judge Bezerra as its first president, in which capacity he served until 1951,45

This legislation may be considered formally unconstitutional since it violated the 1937 Estado Novo constitutional provision in which Labour Justice was subordinate to the executive power. 44 Responsibility for administering the system of previdencia was moved from the CNT to the newly- created Conselho Superior da Previdencia Social by Decreto-Lei 8.737 de 19 de Janeiro de 1946: see Ferrari et al, op. cit., fn 25, page 196. 45 Bezerra was only 30 years old when Dutra named him president of the TST in 1945. After the TST began its regular functioning he was elected its president by the other judges and was re-elected to serve until 185 The structure designed by Judge Bezerra remained intact throughout the Fourth Republic and throughout the time of the Vieira court. The hierarchy of Labour Justice was headed by the TST, while the former regional councils of the CNT were each replaced by a Regional Labour Tribunal {Tribunal Regional do Trabalho), including that of the 5l region (Bahia) which I refer to as TRT5. The juntas were continued as before except that in a judicial district (camarca) which did not have a junta, a district judge (juiz de direito) could exercise the jurisdiction of a junta. Judgments were appealable from the local juntas to the regional tribunal and from there to the TST. A decision of the TST was appealable to the STF (Supremo Tribunal Federal or Federal Supreme Court) on a question of law alone.

The tripartite structure of the CNT was maintained. However, only the presiding judge, known as a. juiz togado (gowned judge) or a "career judge," became a member of the judiciary. Career judges were bachareis (i.e. they held a degree in law) and received a life appointment so that judicial autonomy was protected. The appointment of a career judge was made by the President of the Republic from amongst judicial candidates selected in an open competition. Career labour judges took on all of the traditional trappings of the Brazilian judiciary, including various perquisites of office and the honorific title of "Minister" for those who sat on the TST and ^desembargador^ for judges on the regional tribunals. In their career they could advance laterally, from a small or remote junta to a larger or more central junta, and hierarchically from a junta to the regional tribunal and beyond to the TST. Thus while the autonomy of the career judges enjoyed protection, the appointment and promotion process left room for political influence in the composition and disposition of the regional tribunals and the TST. Promotions to the regional tribunal were based alternately on seniority and merit so the

Dutra left office. He was then elected Corregedor-Geral from 1951 to 1960 and he remained on the tribunal until his retirement. He died in 2003. 46 In 1967 the military enhanced the autonomy and prestige of Labour Justice by removing this appeal to the STF. Ferrari et al, op. cit., fn 25, page 205. The TST was to be located in the national capital. Although the capital was formally moved from Rio de Janeiro to Brasilia in 1959, the TST did not move until May 1, 1971, after its courthouse was completed. 186 first vacancy was filled according to seniority and the following vacancy was filled according to "merit", at the prerogative of the President of the Republic. Since "merit" was a subjective criterion it was likely a code for political appointments because in the Brazilian system of government the power of appointment played a significant political role, to the extent that the system was often referred to as clientelismo (patron-client relation, patronage or clientelism).47

Like the other branches of the judiciary, Labour Justice enjoyed administrative autonomy and the authority to enforce its own judgments, including the authority to invoke the assistance of the RSA (repressive state apparatuses). The president and vice- president of the regional tribunal were elected by their peers ~ the career judges sitting on the regional tribunal — so election to these offices was also politicized. Appointments to the TST were the prerogative of the President of the Republic, but had to be made from among the regional judges, the lawyers in the office of the procurador, or the private labour bar. The president, vice-president and corregedor-geral of the TST were elected by their peers in a contest which resembled the political contests held at the regional tribunal level for this purpose.49 Although the regional tribunals enjoyed administrative autonomy, the TST influenced the regional tribunals through the exercise of its appellate jurisdiction and through the office of the corregedor-geral who was elected by and among the TST judges to monitor the implementation of TST policies at the regional

Another form of clientelismo was found in the power of the President of the Republic to appoint Supplementary (Suplente) Judges from among the members of the private bar who would act as president of their local junta in the absence of the career judge. These appointments were for a two year period but if reappointed a suplente became permanent and enjoyed the same status, privileges and entitlements as a career judge.This practice was eliminated in 1984 by Lei no. 7.221 de 1984. See Ferrari et al, op. cit, fn 25, page 198. 48 The selection of judges from each of these sources was according to a formula or quota set out in Article 694 oftheCLT. 49 The politicization of these internal elections is described by Judge Luiz Roberto Mattos: Justica do Trabalho: Criticas e Propostas para un Novo Modelo (Belo Horizonte: Nova Alvorada Edicoes Ltda, 1997). 187 level. The executive branch in turn was able to monitor and influence Labour Justice through the office of the Procurador.

The "class judges" (as they were known on the TST and the regional tribunals) and the vogais (as they were known on the juntas) enjoyed a lesser status. The class judges and vogais were nominated by the employer associations51 and unions respectively within the relevant geographic jurisdiction and appointed by the president of the regional tribunal for a three year term of office, which was renewable. In the case of the class judges and vogais representing employees, the union federations provided a short list of candidates to the president of the regional tribunal who was required to choose from this list. The class judges and vogais could be expected to play a significant role in conciliation but because Labour Justice was so positivist the lay vogais were unable to exert much influence on adjudication.

5.12 Judicial independence during the dictatorship

During the Fourth Republic, Labour Justice remained relatively autonomous from political power, although the judges interpreted their normative power too narrowly to please organized labour, as we will see in Chapter 6. After the coup in 1964, the autonomy of Labour Justice posed no substantive threat to the military because its jurisdiction — unlike that of the STF — did not touch directly on issues of political power. The novo trabalhismo approach of the military regime left the independence of Labour Justice intact as an aspect of a strategy to maintain the passive compliance of the working class with a new direction in economic policy. At the same time the military regime and its civilian colleagues utilized the existing mechanisms of the CLT to re-impose state

The regional tribunals had administrative autonomy, therefore the formal function of the Corregedor- Geral was only to monitor and report: Revista do TST. 1973 e 1974, page 83 (Relatorio Geral). 51 The CLT called for both workers and employers to organize corporate entities known as sindicatos but I use instead the terms "employer association" and union to avoid ambiguity. 188 control over organized labour, as Gardner suggested, while eliminating through statutory change some of what the trabalhistas had promoted as core labour rights. Among these statutory changes were a new strike law (see Chapter 6), the "arrocho salarial"'' (wage squeeze) (see Chapter 10), the FGTS (Fundo de Garantiapor Tempo de Servico or Guarantee Fund for Time of Service) (see Chapter 10), and the repeal of the ETRinl973.

The first military government was led by General Castelo Branco, whose military and civilian followers were most closely identified with the novo trabalhismo approach. To legitimate their "revolution", Castelo Branco and the other generals issued the following declaration in the name of the "Supreme Command of the Revolution:"

1. The victorious revolution carried out by the Armed Forces, with the support of the people, considers irreversible the legitimate social conquests contained in the labour legislation which is in effect;

2. Workers shall continue to enjoy their full rights, now more than ever, because they are free from the influence of political parties;

3. Labour Justice remains fully functional in its mission to defend their just interests and to harmonize the differences between employees and employers... 53

Among the judges then sitting on the TST there was a high degree of consensus with this novo trabalhismo approach. Many TST judges formally embraced the anti- communist ideology of the generals' revolution, although some judges at the regional and

James A. Gardner, Legal imperialism : American lawyers and foreign aid in Latin America (Madison, Wis.: University of Wisconsin Press, 1980), page 121 (quoting Alfred Stepan). 53 Quoted in Bismarck Duarte Diniz, Organizacao sindical brasileira : a organizacao sindical brasileira e a pluralidade sindical no estado democratico de direito (Cuiaba: EdUFMT, 1995), page 65. The original in Portuguese reads: 1. A revolucao vitoriosa levada a cabo pelas Forcas Armadas, com apoio do povo, considera irreversiveis as conquistas sociais legitimas contidas na Legislacao Trabalhista em vigor; 2. Os trabalhadores continuerao em pleno gozo de seus direitos, agora mais do que antes, porque estao livres da influencia politica-partidaria; 3. A Justica do Trabalho permanece em pleno funcionamento em sua missao de defesa dos justos interesses e de harmonizar as divergencias entre empregados e empregadores;... 189 junta resisted the undermining of core labour rights. By 1968, when Castelo Branco was replaced by military hardliners {duros), the TST had developed a comfortable relation with the regime. After having served the new regime serving as Castelo Branco's first Minister of Labour, and then as Procurarador-geral do Trabalho, Arnoldo Sussekind54 became the vice-president of the TST in 1968, the same year that a new president of the TST ~ Judge Thelio da Costa Monteiro — was installed in the presence of a cast of governmental and judicial dignitaries, including Judge Bezerra who was still a sitting judge. In his investiture speech Judge Monteiro described Labour Justice as "an instrument of collective pacification {instrumento de pacificagao coletiva)". In welcoming Judge Monteiro's ascendancy to the presidency, Judge Julio Barata stressed the continuity in Labour Justice from the Estado Novo, through the Dutra presidency, and on to the current military era, with no mention of the developmental nationalist governments of the Fourth Republic. He expressed the gratitude of the TST judges to the military regime for having enhanced the prestige of Labour Justice by eliminating appeals to the STF.55 Judge Barata contrasted the "communist approach" to the approach of Labour Justice — class struggle versus class harmony, violence versus the rule of law -- and declared the allegiance of Labour Justice to the anti-communist revolution:

It is never to be forgotten that in Labour Justice is deposited the hope of all patriots who desire to construct, and who are constructing, a strong Nation, worthy and true to itself, an authentic democracy, without class struggle, without fear of tomorrow.56

The advantages which accrued to Labour Justice under the military governments may be contrasted to the tribulations of the STF {Supremo Tribunal Federal or Federal

For Sussekind's auto-biography, see Angela Maria de Castro Gomes, Elina Goncalves da Fonte Pessanha, and Regina Lucia de Moraes Morel, Arnaldo Sussekind : um construtor do Direito do Trabalho. (Rio de Janeiro: Renovar, 2004). The interview fails to challenge Sussekind for his role in Operacao Limpeza. 55 In 1967 the military enhanced the autonomy and prestige of Labour Justice by removing this appeal to the STF: see fn 46. 56 Revista do Tribunal Superior do Trabalho, Periodo do 1969. The original in Portuguese reads: Nao esquecer jamais que na Justica do Trabalho esta depositada a esperanca de todos os patriotas, que desejam construir, e estao construindo, uma Nacao forte, digna e fiel de si mesma, uma democracia autentica sem comunismo, sem luta de classes, sem medo do dia de amanha. 190 Supreme Court). The STF judges continued to feel bound by the rule of law, but their task was complicated because they were charged with protecting the constitution. Since the military purported to act as a constituent power,57 the regime changed the constitution at will to coincide with the goals of their revolution. STF judges who disagreed with the generals were removed from office and the complement of judges was manipulated. By 1969 none of the STF judges from before the coup remained on the bench.

The conflict between the STF judges and the military regime arose out of a series of habeus corpus applications in which the STF ruled that the detention of certain political leaders was unlawful. Two of the most controversial of these cases involved figures from the agrarian social movement: Francisco Juliao, the head of the Ligas Camponesas (Peasant Leagues), and Miguel Arraes, the PTB Governor of Pernambuco. The STF judges declared their support for the generals' anti-communist mission but they could not reconcile the military method with the rule of law.58 It may be that the sensitivity of labour judges was similarly offended by the detention, torture and murder of rural union activists, but these were matters beyond the jurisdiction of Labour Justice.

5.13 Concluding Chapter 5

We have seen that Labour Justice had its genesis in an administrative dispute- resolution mechanism established before the Revolution of 1930. After Vargas came to power, this mechanism was expanded to deal with both individual and collective labour

For a discussion of the theory of the constituent power in Latin American constitutional theory, see Joel Colon-Rios, "Reconstituir a Puerto Rico " Rev. Col. Abogados 67 (2006): 109. 58 For the conflict between the STF and the military regime see Emilia Viotti da Costa, O Supremo Tribunal Federal e a construcao da cidadania (Sao Paulo: Instituto de Estudios Juridicos e Economicos, 2001). Anthony Pereira conducted a comparative study of the rule of law under the Brazilian, Chilean and Argentinian dictatorships: Political (in)Justice : Authoritarianism and the Rule of Law in Brazil. Chile, and Argentina (Pittsburgh, Pa.: University of Pittsburgh Press, 2005). In his argument he relied on the twin concepts of "integration" and "consensus", at page 9 ff. I have used his concept of "consensus" as part of my analysis in this section. Pereira contributed to a recent volume dealing with the relation between courts and authoritarian regimes around the world: Tom Ginsburg and Tamir Moustafa, eds. Rule by Law: The Politics of Courts in Authoritarian Regimes. (Cambridge UK ; Cambridge University Press, 2008). 191 disputes, initially on the basis of voluntarism. We have also seen that a tri-partite structure was adopted at an early stage and that the notion of a specialized tri-partite labour tribunal was incorporated into the Constitution of 1934. For Vargas, the establishment of Labour Justice was a priority and the failure of Congress to act in this regard was used by him to legitimate his imposition of the Estado Novo. From the perspective of the liberal industrialists, however, Viana's proposal to eliminate voluntarism in favour of the normative power was anathema. Vargas felt obliged to accommodate their concern by linking the normative power to the abolition of the right to strike. When Vargas finally established Labour Justice in 1941 he kept the judges within his control by using short term appointments and by monitoring their conduct through the office of the Procurador-geral. With the birth of the Fourth Republic Labour Justice was transferred from the executive to the judicial branch, thus ensuring its semi-autonomous status. But while labour judges enjoyed the same life tenure as the other members of the judiciary, their formal autonomy was limited by the appointment process, by their career trajectory, and by the hierarchical structure of Labour Justice.

Since Labour Justice was an integral component of the trabalhista project, it is not surprising that judges such as Antonio Vieira would be attracted to the labour judiciary and that they would be sympathetic to the protection of labour rights. Although during the Fourth Republic the PTB-PCB alliance played a significant role within the union movement and among the developmental nationalists, there were no irresolvable contradictions between the elite version of trabalhismo and the anti-communism of the generals who led the coup in 1964. Novo trabalhismo was grounded in anti-communism but it was not inimical to labour rights per se. Consequently, judges such as Vieira were able to continue within Labour Justice without betraying their protective tendencies. Nor was Judge Vieira's commitment to the rule of law compromised by the military's undermining of core labour rights: these changes were accomplished by statute and regulation, and the role of labour judges was to interpret the legal texts enacted by the other branches of government. 192 The trabalhista project favoured workers by granting and protecting labour rights but the CLT was also intended to serve the purpose of controlling wages through the normative power.59 Judges at the junta level were not concerned with the normative power so there was no contradiction between the protective function of the juntas and the collective bargaining aspirations of organized labour. However, forjudges at the regional and TST level, a commitment to the trabalhista project implied the use of the normative power to control wages, which led to the antipathy of organized labour towards Labour Justice as an institution. This antipathy was felt most strongly among the labour leaders from the PTB-PCB alliance.

Anti-communism served as a code for the political project of the military regime which was to prevent the implementation of the reformas bdsicas and to close the political space which developmental nationalism had opened up for subaltern forces such as the agrarian social movement.60 Within the anti-communist camp, including among the generals themselves, there were soft and hard elements. Nonetheless the military regime at no time opposed Labour Justice as a legitimate protector of labour rights. The regime's economic priority was to compress real wages in order to control inflation, and when the arrocho salarial (wage squeeze) was introduced, Labour Justice served as a useful instrument in its implementation. The compression of wages proved to be unacceptable to organized labour and when the "new unionism" movement chose strike action over the dissidio coletivo the ability of the military to govern was undermined. Many who had initially joined the anti-communist camp, including many judges and lawyers, were prepared to support a dictatorship but were unprepared to accept the

The relation between the accumulation of capital for industrial development and the CLT as a form of labour control is theorized by Francisco Oliveira: Critica a razao dualista ; O ornitorrinco (Sao Paulo: Boitempo, 2003). Oliveira also suggests that the implied "pact" between Vargas and the rural oligarchs allowed low wages to be maintained in agriculture in order to accumulate capital for investment in industry. 60 Caio Navarro de Toledo, "1964: O golpe contra as reformas e a democracia," Revista Brasileira de Historia 24.47 (2004): 13-28. 193 coercive means chosen by the generals to govern. For this reason they eventually joined with organized labour to demand a return to the liberal state. 61

61 For a discussion of the role of the Brazilian bar association in the return to democracy, see Maria Helena Moreira Alves, State and opposition in military Brazil, (Austin: University of Texas Press, 1985). 194 Chapter 6: The dissidio coletivo

6.1 Introduction to Chapter 6

We saw in Chapter 5 that two forms of contention were available in Labour Justice, the dissidio coletivo (collective dispute) and the dissidio individual (individual dispute). This chapter is about the dissidio coletivo (collective dispute), which regulated contention between a union and an employers' association (sindicato patronal) in disputes arising out of collective bargaining. A dissidio coletivo was initiated at the regional tribunal level and did not involve a local junta such as the Vieira court in any direct way.'

In a dissidio coletivo, Labour Justice was called upon to exercise its normative power, and this chapter focuses on the linkage between the normative power and the right to strike. This linkage became a source of antipathy between Labour Justice and the union movement during the Fourth Republic. During the Fourth Republic the normative power was used to control wages according to judge-made rules and to circumvent the right to strike because a legal strike became illegal once Labour Justice issued a judgment. The antipathy intensified during the military regime because Labour Justice was also used as an instrument by the executive to implement its policy of arrocho salarial (wage squeeze).

The right to strike was formally regulated for the first time during the redemocratization process which accompanied the transition from the Estado Novo to the Fourth Republic. This process included a wave of illegal strikes that intensified after President Dutra took office in January 1946. President Dutra responded to this challenge by using his presidential power to enact a strike law by decree which, although formally unconstitutional when enacted, remained in effect for the entire duration of the Fourth

1 By way of exception, a dissidio coletivo involving more than one state was initiated at the TST level. 195 Republic. 2 Dutra was obliged to recognize the right to strike because Brazil was signatory to the A ta de Chapultepec which required its signatories to legislate a series of social rights which included:

...recognition of workers' rights to freedom of association, collective bargaining and the right to strike.3

Although some observers suggested that the strike wave was caused by the Ata de Chapultepec, a more coherent explanation is that workers were determined that their wages should keep pace with post-war inflation, despite the admonition of the PCB that they should "tighten their belts."4 The constitution of the Fourth Republic proclaimed that workers had the right to strike "as regulated by law",5 but by the time the constitution was promulgated Dutra had already regulated the right to strike in a manner intended to render most strikes unlawful.6

2 The strikes were illegal and Dutra's strike law was unconstitutional for the same reason: the constitution of the Estado Novo remained inn effect until the constitution of the Fourth Republic was proclaimed in August 1946; while Dutra's strike law permitted strikes in some circumstances, the Estado Novo constitution banned all strikes: Carlos Eduardo Bosisio, "O declinio do sindicalismo corporativo," in Angela Maria de Castro Gomes and Amaury de Sousa, Trabalho e previdencia : sessenta anos em debate (Rio de Janeiro: Editora de Fundacao Getulio Vargas : CPDOC, 1992) page 51; and Irany Ferrari, Amauri Mascaro Nascimento, and Ives Gandra da Silva Martins Filho, Historia do Trabalho do Direito do Trabalho e da Justica do Trabalho (Sao Paulo: Editora LTR,), page 197. 3 In February and March 1945, with Vargas still in power, the U.S. met with its Latin American allies, including Brazil, in Mexico to discuss post-war regional development at the Conferencia Interamericana sobre os problemas de Guerra e da Paz, or Conferencia de Chapultec: Marcelo Badaro Mattos, "Greves, sindicatos e repressao policial no Rio de Janeiro (1954-1964)," Revista Brasileira de Historia 24.47 (2004): 241-70. The U.S. refused to invite Argentina because, against the wishes of the U.S., it had offered refuge to certain German Nazis: Juan Archibaldo Laniis, De Chapultepec al Beagle : politica exterior Argentina, 1945-1980 (Buenos Aires, Argentina: Emece Editores, 2000). The text in Portuguese reads: Direitos sociais, incluso "reconhecimento do direito de associacao dos trabalhadores, do contrato coletivo e do direito de greve." 4 Francisco Correa Weffort, "Origens do Sindicalismo Populista no Brasil (a Conjuntura do Apos-Guerra)," Seminario sobre "Movimentos laborales en America Latina". ICIS. FLACSO. C1ACSO. ILDIUS- CEDAL.Mexico City, Novembro 1972; John D. French, "Industrial Workers and the Birth of the Populist Republic in Brazil, 1945-1946," Latin American Perspectives 16.4, Views and Debates (1989): 5-27 5 Constitution of 1946, Art. 158 6 Evaristo Giovannetti Netto, A bancada do PCB na Assembleia Constituinte de 1946 (Editora Novos Rumos Ltda, Sao Paulo 1986), page 154 196 In section 3.2 we saw that U.S. representatives in Brazil promoted the development theory of "modernization." U.S. officials in Brazil argued that, compared to the CLT regime, the social rights agreed to at Chapultepec — freedom of association, collective bargaining and the right to strike — were better suited to the "politics of productivity" in which wage levels would be linked to the productivity of the enterprise. Through promoting "industrial pluralism" or "enterprise bargaining," the argument went, the state could facilitate "the corporatist accommodation between labour and managers that linked economic growth, high employment, and real wage increases to productivity".

President Dutra was "pro-modernization," but to win the electoral support of the PTB he agreed to maintain the CLT regime and later came to rely on the authority of the Ministry of Labour to control the union movement and that of Labour Justice to control wages. After Vargas returned to power in 1951, the political regime loosened its control of the union movement. Nonetheless the relation between labour and capital remained antagonistic throughout the Fourth Republic, not least because of the manner in which Labour Justice exercised its normative power.

6.2 The right to strike

We saw that President Dutra regulated the structure of Labour Justice before the constitution of the Fourth Republic was promulgated, and as noted, he did the same with the right to strike. Within the constituent assembly, the PCB argued against Dutra's strike law and in favour of an unfettered right to strike, despite the party's argument that workers should show restraint in their wage demands. The PTB remained silent in order to protect its power base within the Ministry of Labour. With the silence of the PTB, and

7 Renato P. Colistete, "Productivity, Wages, and Labor Politics in Brazil, 1945-1962," The Journal of Economic History 67.1 (2007), page 93. My thanks to Antonio Negro for this reference. 8 IBID, page 94. According to Colistete, labour relations in Brazil "diverged sharply from the overall pattern observed in advanced industrial societies." 9 Decreto-lei 9.797 de 9 de Setembro de 1946. 197 with the support of the PDS — Dutra's party —and the UDN — the party of "modernization" ~ Dutra had little difficulty overcoming the PCB opposition.10

With the PCB isolated in the Constituent Assembly on the issue of the right to strike, Dutra's strike law remained in effect after the new constitution was promulgated. In his strike law, Dutra used two legal techniques to limit the right to strike: the notion of essential services and the notion of timeliness, both of which were used with the intention of making strikes either illegal or ineffective. The statute defined "essential services" (servigos fundamentals) in the broadest terms possible, with a long list of such services that included agriculture;11 all strikes in "essential services" were prohibited. The rules of timeliness linked strike actions inextricably to the normative power because strikes in non-essential services (servigos acessorias) were legal only during two windows of opportunity. The first window opened when the Ministry declared that its officials could not settle the dispute through conciliation and closed when Labour Justice, in a dissidio coletivo, issued a judgment pursuant to its normative power. A judgment in a dissidio coletivo was binding on all employers within the union's jurisdiction. The second window opened if any individual employer failed to implement the judgment, allowing the union to conduct a lawful strike against the recalcitrant employer to coerce its compliance. Labour Justice had the authority to award damages against such an employer but the regional tribunals seemed reluctant to enforce their own judgments in collective disputes. However, employers and the police showed no such reluctance in enforcing

Netto, op. cit, fn 6, page 154 The list included animal husbandry, water, energy, light, gas, sewers, communications, transportation, loading and unloading, sale of essential goods, slaughterhouses, colleges, schools, banks, pharmaceuticals, drug stores, hospitals, funeral homes, defence industries, and any other service that the Minister added by regulation (portaria). 12 The Ministry acted through the DNT or a through a regional delegate. The dispute could be referred to Labour Justice by either of the parties or, in the event of strike action, by the office of the Procurador or ex officio by the President of the regional tribunal: CLT, Article 856. Bosisio argued that all lawful strikes were political because the only purpose a strike served was to put pressure on the labour judiciary: Bosisio, op. cit., fn2, page 51 13 John D. French, Drowning in laws : labor law and Brazilian political culture (Chapel Hill: University of North Carolina Press, 2004), page 22. An abridged version of this book was published in Brazil: John D. 198 the penalties that were attached to participation in an illegal strike, including termination, criminal sanctions and (in the case of the foreign born) deportation.

President Dutra's statute proved to be of limited effectiveness in deterring strike action.14 Strikes occurred throughout the Fourth Republic as organized labour transformed the CLT from a form of labour control into a regime of industrial legality, with the acquiescence of the developmental nationalists who favoured accommodation over coercion. Even within the narrow confines of Dutra's statute, organized labour found the space it required to campaign for wage increases and for expanded workplace rights, although the normative power limited the range of legal outcomes which were possible.

The Greve dos 400 mil (Strike of the 400 thousand) provides a case study of how a legal strike could be used as a form of contention within the legal form of the dissidio coletivo. The Greve dos 400 mil took place in the city of Sao Paulo and the surrounding ABC region16 from October 15 to 25, 1957. This was one of the most important strike movements in the history of Brazil for several reasons: it rekindled the public debate over the linkage between the right to strike and the normative power; it prodded the Catholic Church to renew its interest in labour issues; and it consolidated the PTB-PCB alliance

i <~i within the labour movement. The strike was preceded by a union campaign to increase

French and Paulo Roberto Ribeiro Fontes, Afogados em leis : a CLT e a cultura politica dos trabalhadores brasileiros. (Sao Paulo, SP, Brasil: Fundacao Perseu Abramo, 2001). 14 Salvador Sandoval did a quantitative study of strikes during the Fourth Republic: Salvador A. M. Sandoval, Social change and labor unrest in Brazil since 1945 (Boulder, Colo.: Westview Press, 1993) 15 For an overview of labour militancy during the Fourth Republic, see Tamara Lothian, "The Political Consequences of Labor Law Regimes: The Contractualist and Corporatist Models Compared," Cardozo Law Review (1985-1986): 1001, and Timothy Fox Harding, "The Political History of Organized Labor in Brazil," (unpublished PhD dissertation, Stanford University, 1973. For a quantitative analysis of strike actions in this period see Sandoval, op. cit., fn 14. 16 The ABC Region is an industrialized region which surrounds the Municipality of Sao Paulo. ABC is an acronym for the names of the municipalities: Santo Andre, Sao Bernardo do Campo, and Sao Caetano, and with Diadema included it is ABCD. 17 Antonio Luigi Negro, Linhas de montagem : o industrialismo nacional-desenvolvimentista e a sindicalizacao dos trabalhadores (1945-1978). (Sao Paulo SP: FAPESP : Boitempo Editorial, 2004), page 199 salaries as real wages were being eroded in a period of high inflation. Union activists used this campaign to form a united front of unions from various economic sectors to bargain collectively within the legal framework of the CLT. This approach won the support of President Kubitschek; Janio Quadros18 — who at the time was the governor of the state of Sao Paulo — initially supported the campaign but he withdrew his support in response to the conduct of the unions during the course of the strike.

The strike began lawfully when the Ministry declared that its efforts at conciliation had failed. By the time the dispute reached the Sao Paulo regional tribunal19 the city and region were engulfed in a virtual general strike, pressuring the regional tribunal to respond with a judgment that would restore labour peace. The tribunal ordered a general wage increase of 25%, which was within the range of acceptable outcomes to organized labour and the striking unions sent their members back to work. The unions' sense of victory was short-lived because as soon as production resumed the employer filed an appeal to the TST. In January 1958, the TST reduced the increase to 18%, a decision which Negro attributed to the judges having "given in to the employer lobby" (cedeu ao lobi patronal), and even the U.S. consul was moved to express concern to his superiors in the state department that Labour Justice had lost credibility in the process. The workers reacted to the TST decision with frustration and anger but the law allowed for no further strike action and none was taken.20

The case study of the Greve dos 400 mil shows that, despite its limitations, Dutra's strike law created a space in which organized labour was able to influence the

117. This story about the Greve dos 400 mil is a compilation of the account related by Negro and by John French in Drowning in Law ,fn 13. 18 Quadros was elected president 1960 and resigned after eight months in office: for the political history of this era, see Thomas E. Skidmore, Politics in Brazil. 1930-1964; an experiment in democracy (New York: Oxford University Press, 1967). 1 There are two regional tribunals in Sao Paulo state: the 15' region corresponds to the ABC region and is located in Campinas, and the 2n region covers the remainder of the state and is located in the city of Sao Paulo. Here we are dealing with the 2nd region. 20 Negro, Linhas. fn 17, page 117. Richard Butrick was the consul. 200 manner in which the normative power was exercised by the regional tribunal. We can speculate that the regional judges were prepared to accommodate labour in order to achieve a return to work in circumstances in which a developmental nationalist government was reluctant to use coercion. Unlike the regional tribunal, the TST was under little pressure to accommodate the union demands because production had resumed and the prospect of further strike action was remote and, in any event, unlawful.

Despite the limited impact that a legal strike could have on the setting of wage rates, the number of economic strikes engaged in by organized labour increased after the Greve dos 400 mil, particularly during the years of the Goulart government. The literature tends to blur the distinction between legal and illegal strikes. However, although political strikes were clearly illegal, as we saw in section 3.5 at least two political strikes were conducted by the CGT in 1962. Taken together, these strikes — lawful and unlawful, economic and political — were a contributing factor to the military's decision to depose Goulart in 1964 and to dismantle the CGT. Nonetheless the military government of Castelo Branco used the approach of novo trabalhismo to accommodate the working class to some degree. His Minister of Labour, Arnold Sussekind, introduced a new strike law on 1 June 1964 — exactly two months after the coup ~ which maintained the formal right to strike but introduced measures to ensure that lawful strikes would be less frequent and less likely to disrupt the government's economic strategy.2I Sussekind's strike law allowed strikes in the private sector — including in agriculture -- but prohibited strikes at all levels of the public service (Federal, state, and municipal). In order for a strike in the private sector to be lawful, however, the statute required the strike to be timely and required the union to follow a set of complicated procedures. The "competent authorities" were expected to staff and maintain "essential services" in the event of a lawful strike and Labour Justice was empowered to order workers to maintain machinery and emergency services in any enterprise for the duration of a legal strike.

21 Lei No. 4.330 de 1 de Junho de 1964. The new strike law offered some accommodation such as prohibiting replacement workers during a lawful strike. 201 While the timeliness rules remained similar to those of Dutra's legislation, other procedural rules in Sussekind's legislation were both innovative and arcane. Legality depended on the nature of the union's demands and its compliance with the procedural requirements. A strike vote was mandatory and was to be conducted in the presence of a representative of the Procurador by secret ballot at a general assembly, with an onerous requirement for a quorum. The union was required to present its demands in writing to the general assembly before the vote and then to serve its demands on the employer and on the Ministry, with a notice that strike action was threatened. This allowed Labour Justice to assess the legality of the strike before it began. The penalties for participation in an unlawful strike were increased and a broad range of strike-related misconduct was deemed to be criminal conduct, including incitement of disrespect for a normative decision of Labour Justice.

Sussekind's strike law was so arcane that it led the TST to engage in what Judge Jose Luciano de Castilho Pereira — then the TST's Corregedor Geral— referred to as "kafkanian theories" (teorias kafkanianas) of interpretation. Judge Pereira commented:

The exercise of the Normative Power, especially by the Superior Labour Tribunal, in recent years aggravated the problem, resulting in great prejudice to Labour Justice itself.24

The strike was unlawful if the union's demands had been rejected by Labour Justice within the previous calendar year or if the union was seeking to amend an existing negotiated agreement or to challenge the provisions of a normative decision of Labour Justice which was still in effect. An exception was provided if the union could prove a substantive change of circumstances. 3 Two-thirds of the union membership was required for a quorum. If the quorum was not met the first time it was reduced to one-third on a second attempt (one-eighth if the number of workers in the category was over 5000). 24 Jose Luciano de Castilho Pereira, A Justica do Trabalho e os Modelos para a Solucao dos Conflitos Individuals do Trabalho: Estado ou Empressa - Arbitragem de Conflitos (Brasilia:, September 1, 2000, available online at http://www.buscalegis.ufsc.br/revistas/index.php/buscalegis/article/view/30030/29451), page 13 The original in Portuguese reads: A pratica do Poder Normativo, sobretodo pelo Tribunal Superior do Trabalho, nos ultimos anos agravou o problema, resultando em grande prejuizo para a propria Justica do Trabalho. 202 Sussekind's strike law proved to be unenforceable and was increasingly flouted by the "new unionism" movement after 1978 when the military regime began to loosen its grip on power. Although it remained formally in effect until 1988, by 1978 the TST's interpretation of the strike law had become "surreal" and the statute had become unenforceable. Ultimately the unions had won the right to strike through direct action, "net marra " (in the trenches) and in defiance of state law.

6.3 The normative power

We have seen that there was a linkage between the normative power and the right to strike. In this section we will consider how the exercise by Labour Justice of its normative power during the Fourth Republic created antipathy between itself and organized labour. The labour judges remained true to the trabalhista project which indeed intended that the normative power be used to control wages and that the CLT be a complete code of labour rights which could not be substantively broadened or improved through collective bargaining. Thus to the extent that PTB activists joined with the PCB in critiquing the approach of Labour Justice to the normative power they were moving away from their own trabalhista roots or at least from the project originally launched by the trabalhista elite.

In the formative years of Labour Justice, collective disputes were focused exclusively on the issue of wages. While the CLT purported to be a consolidation of existing statutory norms rather than a code, its drafters were legal positivists who filled the gaps which they found in the existing statutes and presented a complete labour code which purported to regulate all aspects of the employment relation in the formal

This description of how the strike law was disrespected by organized labour is taken from Milton Martins, Sindicalismo e Relacoes Trabalhistas (Sao Paulo: Editora LTR, 1995), page 164. The leaders of the "new unionism" movement relied on their ability to bargain directly with their employers.

203 economy. Wages would be set voluntarily through bargaining between the appropriate corporatist partners ~ unions and employer associations — or, failing their agreement, by the exercise by Labour Justice of its normative power. However, during the Fourth Republic unions increasingly demanded improvements not only in areas contemplated by the CLT but also in areas beyond its ambit, including the recognition of OLTs (workplace organizations).

With respect to non-wage disputes, Labour Justice took a conservative approach and developed three "rules of thumb": first, if the area was within the ambit of the CLT, the normative power would not be used to order an improvement; second, if the area had been addressed by the parties in a previous round of bargaining, the normative power could be used to order an improvement on what had been agreed to in a previous round; third, if the area was outside the ambit of the CLT and outside of the areas previously addressed, the normative power would not be used to order a breakthrough. Without an effective right to strike, and confronted with this conservative approach, organized labour turned to the political process in order to bring about workplace improvements, since employers had little incentive to improve workplace conditions through negotiations.

With respect to wage disputes, the normative power was used as a matter of course to order increases which reached double digits in times of high inflation, including the post-war period and much of the Fourth Republic. There were no statutory criteria for the regulation of wages. According to Kenneth Mericle, labour judges

Magda Barros Biavaschi, Entrevista com Ministro Arnaldo Sussekind. 27 de Junho de 2002. and Entrevista com Ministro Arnaldo Sussekind. 20 de Outubro de 2004 (cited in Chapter 5, fh 4). 27 These rales of thumb were gleaned from the work of Gacek and Mericle: Stanley A. Gacek, "Revisiting the Corporatist and Contractualist Models of Labor Law regimes: a Review of the Brazilian and American Systems," Cardozo Law Review 16 (1994-1995): 21; Kenneth Scott Mericle, "Conflict Regulation in the Brazilian Industrial Relations System," (unpublished PhD dissertation, The University of Wisconsin, 1974). 204 ...were free to use their own criteria in determining the size of wage increases. Individual wage decisions of the courts tended to reflect the individual circumstances of the wage dispute.

However, while it is true that judicial decisions about wages reflected the circumstances of the dispute, it is unlikely that labour judges were "free to use their own criteria" in each dispute. The discretion of the regional judges was not unfettered because their decisions were subject to an appeal to the TST, as we saw in the case of the Greve dos 400 Mil (Strike of the 400 thousand). Moreover their conduct and their adherence to guidelines issued by the TST was regularly monitored by the Corregedor-geral who reported to the president of the TST. Wage policy was thus ultimately controlled by the TST whose judges were political appointments and who were attuned to the policies of the executive branch, as we saw in the case of Judge Bezerra.

A recent study showed that "for most of the 1945-1962 period, increases in labour productivity exceeded increases in real wages in Brazil's manufacturing industry". However, the "politics of productivity" suggested that wage increases ought to be linked to increases in productivity. In the post war years, Brazilian industrialists took up the notion of this linkage with enthusiasm, until a "structural break" was achieved in 1954 when real wages began to lag behind increases in productivity. This caused the employers' enthusiasm for this linkage to diminish, while on the other hand the linkage that continued to concern organized labour was between wage levels and inflation. The the same study showed that while at times wage increases exceeded the rate of inflation they more often lagged behind. When this lag occurred, with the resulting decrease in real wages, organized labour could point to the normative power as the culprit.

In rural Brazil, wages were more closely linked to the minimum wage than to either productivity or inflation, and for rural workers the minimum wage acted more as a

28 Mericle, op. cit., fn 27, page 252. 29 An example of a report submitted by the Corregedor-geral is cited in Chapter 5, fn 50. 30 Colistete, op. cit., fn 7 205 maximum than a minimum, as we will see in Chapter 10. The overall impact of the minimum wage on the Brazilian economy was therefore significant because over half of the workforce earned the formal minimum or less.31 As we will see in Chapter 10, the setting of the minimum wage was a political decision, unrelated to the normative power, although during the Fourth Republic the minimum wage level was used as an economic barometer because its rate of increase reflected government wage policies and provided a benchmark for increases in other sectors. The union movement conducted an annual political campaign to have the minimum wage keep pace with inflation.

After 1964, the military regime introduced the arrocho salarial (wage squeeze) to reduce real wages in order to control inflation. Initially the labour judges retained their formal autonomy to set wages, but in July 1965 a formula was imposed by statute that required labour judges to link wage increases to both inflation and productivity, at a rate which ensured that wages would lag behind.32 Initially some regional judges resisted but they soon fell in line with the statute, prompting one judge to complain that the normative power had been replaced by a calculator.33

With respect to areas other than wages, the arrocho salarial led to an unexpected result. Since wage increases were now fixed by "a calculator", unions began to bargain improvements in areas other than wages, despite the judges' conservative approach to non-wage issues. The demand for an OLT (workplace organization) serves as an example: when an employer refused to voluntarily recognize a union grievance

31 Maria Helena Moreira Alves, State and opposition in military Brazil. (Austin: University of Texas Press, 1985) page 111-112. DIEESE conducted a study of the miliatry wage policy which showed real wages fell dramatically over the 10 year period of the study:Cesar Henrique Concone and Walter Barelli, Estudos Socio-Economicos: Dez anos de politica salarial (Sao Paulo: DIEESE, 1975) 32 Lei No. 4.725 de 13 de Julho de 1965. 33 Kenneth Paul Erickson, The Brazilian corporative state and working-class politics (Berkeley: University of California Press, 1977), pages 162-164 206 committee, Labour Justice refused to exercise its normative power to impose one because to do so would amount to a "breakthrough", contrary to one of its three rules of thumb.34

6.4 Assiduidade integral (perfect attendance)

This section contains a case study of the manner in which Labour Justice exercised its normative power and the campaign of organized labour to contend against Labour Justice on this issue. It shows that TST judges, attuned to "politics of productivity," were willing to link wage increases to productivity, while parallel organizations associated with the union movement used the dissidio coletivo as a form of contention while campaigning for economic and other objectives.

We saw that the normative power was linked to the right to strike in the constitution of the Estado Novo and that this linkage was reinforced in the redemocratization process by President Dutra's strike law. As a confidant of President Dutra, Judge Bezerra provided Labour Justice with continuity between these events and he played a key role in determining the manner in which the normative power would be exercised in the formative years of Labour Justice. The importance of his role is demonstrated by the contention over assiduidade integral (perfect attendance).

Assiduidade integral was linked to the "politics of productivity" and a related concern which was prevalent among Brazilian employers in the post-war period that a poor attendance record {assiduidade) led to a loss of productivity. For example, this concern found its way into the statute which regulated the paid weekly rest day which conditioned entitlement on the worker maintaining a perfect attendance record during the

34 Gacek, op. cit., fn 27, pages 69-70 Other union demands the Labour Justice refused included protection against outsourcing, access to the plant by union representatives, job security and seniority provisions for layoff and recall. Mericle gave an example of a union demand that labour justice granted. Labour judges routinely attached the "union discount" to wage increases, permitting unions to collect a contribution from workers without their specific consent, arguably in contravention of the CLT. This money could be used for union purposes beyond those permitted by the CLT since the money did not come from the union tax. Mericle, op. cit., fn 27, page 229 207 week in question; if a worker missed a day during the week he or she was not entitled to a paid rest day.35 (We will see in Part III that the effect of this rule in the cacao region was that Saturday work was no longer scheduled so the growers would not have to pay for the Sunday rest day.)

The notion of assiduidade integral originated in the social field with employers who imposed an attendance requirement as a condition for earning an increase in wages. Employers often granted a wage increase voluntarily in the post-war period to avoid having production interrupted by an illegal strike. As a condition of such an increase the employers imposed an attendance condition so that the increase was denied to a worker who did not maintain the attendance standard in a given month. When employers raised the issue in a dissidio coletivo, the labour judges responded by imposing this condition in various cases, whether or not such a condition violated one of the "rules of thumb". When the democratic interval came to an end in 1947, the labour judges became bolder in their support for the employer position:

.. .the labor courts began in 1947 to make decisions that were increasingly anti-labor, taking their cue from the government...Increasingly, labor judges were accused of taking bribes, and the courts were accused of anti- labor bias.36

One of the first dissidios coletivos to reach Labour Justice after it was transferred to the judicial branch was a dispute between the Sindicato dos Oficiais Electricistas do. Rio de Janeiro (the electricians union) and the Sindicato das Industrias Metalurgicas, Mecanicas, e de Material Electrica (the corresponding employer association). The

10 dispute was referred to the Ministry for conciliation in August 1946 ~ under the

35 Lei No. 605 de 5 de Janeiro de 1949, regulated by Decreto No. 27.048 de 12 de Agosto de 1949. 36 Fox Harding, op. cit, fh 15, page 226-227 37 The dispute involved two different employer associations who tried to avoid the dispute on technical grounds. The other employer association was the Sindicato do Comercio de Material Electrico do Rio de Janeiro. 38 The available record does not reveal whether or not the union was on strike during these proceedings, although it seems unlikely. Fox Harding reported at page 184 that there was a metalworkers strike in Rio in 208 previous system ~ and from there to the Regional Labour Tribunal of the First Region, in Rio de Janeiro, on December 6, 1946, when the new system was only three months old. Through further conciliation the regional judges narrowed the issues in dispute but were unable to achieve a settlement.

The issue of assiduidade was ultimately resolved by the regional tribunal in a manner that the union was prepared to accept. The regional judges imposed an attendance condition that had some flexibility, allowing a worker whose attendance exceeded 85% of the scheduled days of work in a month to receive the full amount of the increase. The union appealed to the TST solely on the issue of what date the wage increase came into effect, and the employer association filed a cross-appeal which was based on a technical

1946 but this was not likely the same union. The electricians involved in this case may have been a craft unit. 391 am relying on the published decisions for this analysis and since there is not a clear recitation of the facts in either the decision of the regional tribunal or the decision of the TST, I am relying heavily on context. The decisions were reported in the Diario da Justica for July 1947 and are cited as Processo TST 3.148-47. There were three issues in dispute: first, what was the appropriate classification scale? second, what was the appropriate percentage increase? third, what was the appropriate wage rate on which the percentage increase should be based? The first issue was resolved by the regional judges when they convinced the union to accept the employer's classification scale. This provided the parties with a list of classifications within the category of electrician, based on what the employer had proposed in 1945 to replace individual rates, with an existing wage rate attached to each classification. The second issue could not be resolved so the regional judges ordered a 45% general increase for each classification. A double digit increase was in order because of the high rate of inflation in the post-war period. The third issue was problematic because in 1946, to moderate the effects of inflation, the employer voluntarily increased the rates of the 1945 scale. The employer's position was that the 45% increase should be applied to the 1945 scale while the union's position was that the increase should be applied to the 1946 scale. The strength of the union's argument was that a 45% increase applied to the 1945 scale would result in a decrease for some classifications when compared to the 1946 scale. From this we can conclude that the 45 % increase granted by the regional judges was less than what the employer had thought was necessary to maintain labour peace when it granted the voluntary increases. The judges exacerbated the problem through an apparent mistake. In the oral resolution (acordao) the reporting judge said that the 45% increase applied to the 1945 scale and was retroactive to August 1945, a year before the dispute was referred to the Ministry. However, the tribunal's certified written judgment (julgamento) read that the increase applied to the 1946 scale and was effective August 1946 when the dispute was referred to the Ministry. The union took the position that the increase applied to the 1946 rates, as they had requested, but that it was perhaps no longer retroactive. 209 argument. In other words, neither party raised the issue of assiduidade before the TST.41

The TST decision was issued on June 19, 1947, a month after the decree which brought the democratic interval to an end. In dealing with the attendance issue, the TST issued a split decision in which the majority of the TST judges voted to impose a requirement of "total" or "perfect" attendance {assiduidade total or assiduidade integral). The requirement meant that only absences caused by a proven illnesses ox force majeur (forga maior) would be excused, and an absence for any other purpose would result in the forfeiture of the amount of the increase for that month. The TST judges split evenly on this issue and Judge Bezerra, as the TST president, cast the deciding vote in favour of assiduidade integral.

The rule of assiduidade integral soon spread to other workplaces, including the Companhia Siderurgica Nacional (CSN) in Volta Redonda, a state enterprise founded in 1941 and a model of trabalhista labour relations.42 In November 1950 the TST awarded CSN office workers in Rio de Janeiro a wage increase of 19% with the rule of assiduidade integral attached to the increase. CSN management then granted the same percentage wage increase to its production workers in Volta Redonda and imposed the

The employer association argued that the dispute had been commenced against the wrong employer entity. It is unclear what the origin of this discrepancy was but the TST treated it as a mere technicality and the employer appeal was summarily dismissed. 41 The TST granted the union appeal in part, accepting that the increase was based on the 1946 rates but disagreeing on the effective date of retroactivity. Instead of August 1945 or August 1946 the TST judges ruled that the increase was effective June 19, 1947, the date on which the TST decision was rendered. The TST judges also ruled that workers whose employment commenced after August 1946 — the date that the dispute was referred to the Ministry — were not entitled to the increase. 42 The CSN was financed by the US Import-Export Bank to support the allied war effort and was touted by the trabalhistas as a model employer. Dinius set out the history of labour relations at the CSN in his paper: Oliver Dinius, Brazilian Labor Courts and Industrial Relations Under State Capitalism. 2008) (on file, and my thanks to the author for forwarding a copy). For the CSN philosophy of dadiva (labour rights were a gift from management), see the study by Morel and Mangabeira: Morel,Regina Lucia de Moraes and Wilma Mangabeira, ""Velho" e "Novo" sindicalismo e uso da Justica do Trabalho: Um Estudo Comparative com Trabalhadores da Companhia Siderurgica Nacional," DADOS- Revista de Ciencias Sociais37.1 (1994): 103-24, at page 108. 210 same rule. In this manner Labour Justice and employers spread the rule of assiduidade integral from one workplace to another.

Critics of assiduidade integral argued that the rule was unduly harsh and that it was open to abuse by overzealous employers, including some who used the rule to penalize minor lateness. An unsigned editorial writer in the prestigious legal journal LTR {Legislaqao do Trabalho) accused such employers of maintaining the attitudes of the 19th century — a reference to colonial slavery —even though they were living in the 20l

44 century.

Women in the textile industry were particularly prejudiced by the rule of assiduidade integral. The majority of production workers in textile were women who often bore primary responsibility for childrearing, which frequently required them to miss work or arrive late. Women with young children rarely achieved perfect attendance and therefore rarely received their wage increase.

Organized labour campaigned against assiduidade integral. In 1952 union militants created a parallel organization known as CISCAI (Comissdo Intersindical contra a Assiduidade Integral, or Inter-Union Commission Against Perfect Attendance) in nine different states. In November 1952 these nine CISCAIs convened the Convengao Nacional da CICSAI (CICSAI National Convention) which was attended by 179 delegates representing eighty-nine different local unions (sindicatos). The PCB considered this event to be a turning point in the contention for union autonomy because

Morel and Mangabeira, op. cit., fn 42. 44 Thomaz da Costa Neves, "A clausula de assiduidade nos dissidios coletivos", LTR (Legislacao do Trabalho). Ano XIV, vol. XIV, no. 148, Agosto de 1949 45 Larissa Rosa Correa, "A Greve Contra a Carestia: Trabalhadores Em Busca De Um Acordo Coletivo Na Justica do Trabalho - Sao Paulo, Setembro De 1954", (Presentation to ANPUH, 2007. Homepage http://www.snh2007.anpuh.org. visited on July 20, 2009). 211 it was the first post-war labour convention organized without the support of the Ministry of Labour and without police intervention.46

This campaign embarrassed the labour judges because they were portrayed as having an anti-union animus and as out of touch with the realities of the workplace. At the same time Labour Justice was confronted with an informal campaign by U.S. labour diplomats who argued that, as a democracy, Brazil should replace the normative power with "free collective bargaining."47 Besieged by both campaigns, Judge Bezerra joined the public debate and published a signed article in the prestigious LTR journal defending the normative power which, he argued, was more democratic than strike action. In response to the CISCAI allegations that Labour Justice was infected with an anti-union animus, Judge Bezerra argued that Labour Justice was more democratic than other branches of the judiciary because it had a tri-partite structure in which worker representatives participated in the dispute resolution process.48

The unions also brought the rule of assiduidade integral to the bargaining table. In September 1954 metalworkers (men) and textile workers (women) in the City of Sao Paulo joined forces in a "Strike against Poverty" (Greve contra a Carestid). The timing of this strike was delicate because President Vargas had committed suicide just a month earlier and his death was met with an outpouring of both popular grief and popular sentiment in favour of trabalhismo. The dispute was transformed into a dissidio coletivo before the Second Regional Tribunal in Sao Paulo. The regional judges granted a wage increase of 25% and modified the attendance rule for textile workers (women) so that they could be absent one day per month "without justification" and still receive the

Augusto Cesar Buonicore, "Sindicalismo Vermelho: A Politica Sindical do PCB enter 1948 e 1952," Cad. AEL 7.12/13 (2000), page 42 47 Colistete, op. cit., fn 7, page 117. 48 Geraldo Bezerra de Menezes, "Poder normativo e regime democratico", LTR (Legislacao do Trabalho). Ano XIV, vol. XIV, no. 148, Agosto de 1949. The class judges were eliminated in 1999 by Emenda Constitucional n° 24, de 10 Dezembro de 1999. 212 increase. Women workers were further accommodated with an allowance of two consecutive days of "unjustified absence" per month because of their specific needs.49

Various factors were present at the time that the regional judges modified the rule of assiduidade integral: Vargas's suicide, the Greve contra a Carestia, the CISCAI campaign, the end of Bezerra's tenure as president of the TST, and the "structural break" in productivity. In June 1955, during the succession crisis to replace Vargas, Congress enacted a statute which directed Labour Justice to cease and desist from imposing any form of attendance condition for a wage increase, rebuking Labour Justice and bringing an end to assiduidade integral.

6.5 Concluding Chapter 6

In this chapter we saw that the normative power gave Labour Justice the jurisdiction to impose terms and conditions of employment and that during the Fourth Republic Labour Justice exercised this power in a conservative manner, using it mainly to control wages. After the military coup in 1964 the role of Labour Justice in setting wage policy was diminished when the military regime introduced its policy of arrocho salarial (wage squeeze). With respect to non-wage issues, Labour Justice developed three "rules of thumb" which ensured that unions were able to make few gains through collective bargaining.

The chapter reviewed in detail the draconian strike law introduced by President Dutra in 1946 and the even more draconian statute introduced by Minister Sussekind after the coup. It showed that the linkage originally imposed at the start of the Estado Novo between the normative power and the right to strike became a source of conflict between organized labour and Labour Justice during the Fourth Republic. Through a case

Correa, op. cit., fn 45, page 10 50 Lei 2510 de 20 de Junho de 1955. For the political history of these years, including the Vargas suicide and the succession crisis which followed, see Skidmore, op. cit., fn 18 213 study of the issue of assiduidade integral (perfect attendance) the chapter showed the labour judges who acted within the juridical field and the union leaders who acted within the social field were at odds both politically and ideologically since the early years of the Fourth Republic. We saw that organized labour conducted an effective campaign to have the decision of the TST overthrown, causing Congress to enact a statute in 1955 that prohibited Labour Justice from imposing conditions like assiduidade integral. The campaign demonstrated that organized labour had an extensive repertoire of contention at its disposal, and in the campaign the dissidio coletivo (collective dispute) was deployed as a form of contention.

While the dissidio coletivo was of limited use as a form of contention, it had even less to offer to the agrarian social movement. The rural unions gained formal access to the dissidio coletivo when the ETR was enacted, but it was used rarely or ignored as a form of contention for two main reasons. The first reason was that rural workers were formally denied the right to strike throughout the Fourth Republic because agriculture was deemed to be an essential service under Dutra's strike law. Although the right to strike was limited in other sectors, the experience of the Greve dos 400 mil showed that a political strike — that is, one directed against Labour Justice — had the limited effect of pressuring a regional tribunal to accommodate union demands.

The second reason why the dissidio coletivo had little to offer to the agrarian social movement as a form of contention was that the normative power was exercised in a conservative manner; the three "rules of thumb" ensured that the plight of rural workers would not have improved as a result of a dissidio coletivo. By contrast, the labour rights for which rural workers campaigned, including the minimum wage, were in effect maximum employment standards rather than minimum employment standards. After the enactment of the ETR the focus of labour's efforts was to secure compliance with these standards, that is, to coerce the growers into respecting the labour rights that were already provided under state law. There was little prospect that Labour Justice would enhance

214 these rights in the exercise of its normative power. A more rational campaign strategy for rural workers therefore was to use the dissidio individual, to which we will turn in Chapter 7.

Finally, with respect to the rural unions in the cacao region, no collective agreements were either negotiated or imposed during either the Fourth Republic or the military regime, nor is it known whether the rural unions ever contemplated using the dissidio coletivo as a form of contention. The ETR offered generous support to rural workers in their effort unionize but the CLT regime held out little hope that collective bargaining would lead to improved terms and conditions of employment for them.

215 Chapter 7: The dissidio individual

7.1 Introduction to Chapter 7

In Chapter 6 we saw that the repertoire of the union movement included the dissidio coletivo as a form of contention, and that during the Fourth Republic organized labour incorporated the dissidio coletivo, despite its limitations, into its campaigns. In this Chapter we will consider the dissidio individual (individual dispute) as a form of contention and its incorporation into the campaigns of the union movement, including the campaigns of rural unionism. With respect to the three factors identified in section 1.7 as contributing to the problem of non-compliance with the ETR, this chapter examines a second structural defect in the CLT/ETR regime. While the first such defect was identified in Chapter 4 as the lack of a requirement to recognize a union OLT (workplace organization), in this chapter the lack of protection against employer reprisals is presented as a major contributor to a general problem non-compliance with labour rights.

The dissidio individual was the only enforcement mechanism that state law made available to rural workers, which suggests a direct relation between the limitations of the dissidio individual and the non-compliance of the coroneis with labour rights. The chapter begins with a consideration of the purported "ideal model," focusing on expedition, which the dissidio individual was held out to entail for the enforcement of individual labour rights, and the factors indicated in previous studies that caused the dissidio individual to deviate from this purported "ideal model". While the critics of Labour Justice often agree that the dissidio coletivo was seriously flawed, the dissidio individual is still defended despite its failure to live up to this purported ideal:

216 [I]n the field of individual disputes, the prestige of Labour Justice is unparalleled; and, where the local labour juntas (now referred to as varas) are well structured, the juridical services have been prompt and effective.1

Although "well structured" juntas may have been "prompt and effective", not all juntas were well structured. Indeed, in the Morel and Mangabeira study ~ cited below and considered further in section 7.5 ~ the authors admonished that the limitations of the dissidio individual varied across time and space. Nonetheless the case study in Part III will show that the Vieira court in particular was "well structured" and as expeditious as the purported "ideal model" required.

While the CLT regime in general has been widely studied, the study of the relation between Labour Justice and social history is in its infancy. This chapter therefore revisits the previous studies of the dissidio individual from this perspective. These studies were mainly concerned with juntas in an urban setting, including three studies in the industrialized South-central region which deal with local juntas which are

1 This statement came from a judge sitting on the TST: Jose Luciano de Castilho Pereira, "A Justica do Trabalho e os Modelos para a Solucao dos Conflitos Individuais do Trabalho: Estado ou Empressa - Arbitragem de Conflitos" (Brasilia: 2000. Available inline at http://www.buscalegis.ufsc.br/revistas/ index.php/buscalegis/article/view/30030, visited on July 20, 2009), page 13. The original in Portuguese reads: Como ja foi ditto, no campo do dissidio individual, inegavel e o prestigio que tern a Justica do Trabalho; e, onde as varas do trabalho estao bem estruturadas, a prestacao jurisdictional tern sido rapido e eficaz.

2 Regina Lucia de Moraes Morel and Wilma Mangabeira, ""Velho" e "Novo" sindicalismo e uso da Justica do Trabalho: Um Estudo Comparativo com Trabalhadores da Companhia Siderurgica Nacional," DADOS- Revista de Ciencias Sociais 37.1 (1994): 103-24. 3 Magda Barros Biavaschi, "O Direito do Trabalho no Brasil-1930/1942: a construcao do sujeito de direitos trabalhistas," (unpublised doctoral dissertation, Universidade Estadual de Campinas-UNICAMP, 2005), at page 77: In the field of sociological analysis, there exists a lacuna with respect to the specific theme of law and Labour Justice. The original in Portuguese reads: No terreno das analises sociologicos, registra-se uma lacuna quanto ao tema especifica do Direito e da Justica do Trabalho. This lacuna is currently (2009) being filled. Labour Justice has begun to recover its own history at the level of the regional tribunals. Social historia ns at UNICAMP and the UESB have inititiated studies around the theme of Labour Justice, while various historia ns have turned to the archives of Labour Justice as a useful primary source in more general studies. 217 the hierachical equivalent of the Vieira court.4 The authors of two studies have incorporated the dissidio individual into their accounts of labour relations in a specific workplace,5 including Morel and Mangabeira who compared the use of the dissidio individual as a form of contention during the Fourth Republic ~ "old unionism" ~ to its use in the campaigns of the "new unionism" movement. These studies are considered in detail in this chapter, and the results of these studies are used herein and in Part III as a benchmark for an analysis of the Vieira court. While the case study of the Vieira court is a qualitative study of its relation with rural workers, these previous studies touch only lightly on the quality of judicial interpretation and none of these studies dealt specifically with rural workers. The specific character of the relation between Labour Justice and rural workers was highlighted by Judge Jose Luciano de Castilho Pereira of the TST, who argued that Labour Justice was of particular importance in the defense of the labour rights of rural workers because of the "brutal reality of the interior of Brazil." The importance of studying this relation was emphasiszed by Antonio Dias in the conclusions to his study of the rural social movements in Bahia, in which he identified the relation between rural workers and Labour Justice as an important area that remained to be explored. Finally Cliff Welch began the exploration of this relation in his study of rural unionism in the state of Sao Paulo, making creative use of the records of the labour junta in Riberao Preto

4 Kenneth Scott Mericle, "Conflict Regulation in the Brazilian Industrial Relations System," (unpublished PhD dissertation, The University of Wisconsin, 1974); Paulo Andre Anselmo Setti, Merecimento e eficiencia : a performance de advogados e juizes na Justica do Trabalho em Campinas. (Campinas: Centro de Memoria, Unicamp, 1997); Rinaldo Jose Varussa, "Legislacao e Trabalho: experiencias de trabalhadores na Justifa do Trabalho (Jundiai, SP, decadas de 1940 a I960)," (unpublished PhD dissertation, PUC/SP, 2002). 5 Morel and Mangabeira, op. cit, fn 2; Oliver Dinius, Brazilian Labor Courts and Industrial Relations Under State Capitalism, (unpublished manuscript, 2008, on file). 6 Pereira, op. cit., fn 1, page 12. The original in Portuguese reads: ...realidade brutal do interior do Brasil. 7 Antonio Dias Nascimento, "Peasant Social Movements and Rural Workers' Trade Unions in Bahia (1972- 1990)," (unpublished PhD dissertation, University of Liverpool, 1993), page 309: ...other important points remain to be explored. The first is the relationship between peasants and agricultural workers and those spheres of the state apparatus by which their demands are handled, such as civil and labour courts... 218 to show the limitations of the dissidio individual in ULTAB's campaign for the minimum wage.8

7.2 The "ideal model"

The suggestion that the dissidio individual provided an "ideal model" (modelo idealizado) for the protection of individual labour rights came from TST judge Ives Gandra da Silva Martins Filho, for whom Labour Justice was intended to be "clear and simple, with the trial and judgment taking place in a single appearance and with limited access to appeals".9 Athough this notion of expedition was significant, a "clear and simple" procedure would be far from ideal if it did not at the same time protect labour rights, as the trabalhistas had promised. In section 1.4,1 proposed and defined the notion of "coherence" as an appropriate test for a qualitative study of the Vieira court, without excluding expedition as a significant factor in the protection of labur rights. However, even within the limited scope of the judge's narrowly defined "ideal model", Labour Justice failed the test since, as the judge admitted, this "ideal model" was never achieved in practice:

[F]rom the beginning, Labour Justice was snowed under by the enormous quantity of claims that were brought to it for a solution.

The judge's proposition that a caseload problem caused the dissidio individual to deviate from the "ideal model" raises the question of what caused the caseload problem. From a practitioner's perspective, Carlos Bosisio argued that a problem of "access" was

Cliff Welch, The seed was planted : the Sao Paulo roots of Brazil's rural labor movement, 1924-1964 (University Park, Pa.: Pennsylvania State University Press, 1999). 9 Ives Gandra da Silva Martins Filho, in Irany Ferrari, Amauri Mascara Nascimento, and Ives Gandra da Silva Martins Filho, Historia do Trabalho do Direito do Trabalho e da Justica do Trabalho (Sao Paulo: Editora LTR,), page 199. The original in Portuguese reads: ...celere e simples, com a concentracao da instrucao e julgamento numa unica audiencia e a reducao das vias recursais. 10 IBID, 199. The original in Portuguese reads: ...desde os seus comecos, a Justica do Trabalho viu-se assoberbada pela quantidade enorme de demandas que lhe eram trazidas para solucao. 219 what caused the dissidio individual to deviate from this "ideal model". By "access" he meant that the fear of employer reprisal prevented workers from filing claims, leading indirectly to the caseload problem:

Nobody approaches Labour Justice as an employee... [T]o give access to Labour Justice, it is not enough to dispense with paying the costs of the hearing, to have a lawyer, etc. It would be necessary to protect people from arbitrary discharge.

Bosisio used the notion of "access" to refer to the fear of employer reprisal, which is the meaning "access" is given in this chapter. Although there may have been other reasons why violations of labour rights were left unchallenged, because the fear of reprisal was both well-founded and universally recognized, it was disingenuous for the judge to suggest that the dissidio individual ever was an "ideal model".12 The CLT regime itself was seriously flawed with respect to access, and we will see in Chapter 10 that the protections offered by the ETR in this regard were even weaker than those offered by the CLT.

In general, then, a culture of non-compliance characterized the general approach of Brazilian employers to labour rights:

1' Carlos Eduardo Bosisio, "O declinio do sindicalismo corporativo," in Angela Maria de Castro Gomes, A invencao do trabalhismo (Sao Paulo: Vertice ; Rio de Janeiro : IUPERJ, 1988), page 51 and 54 . The original in Portuguese reads: Ninguem se aproximava da Justica do Trabalho como empregado...[and later]... [P]ara se dar acesso ao Justica do Trabalho nao basta ser dispensado de pagar as custas do processo, ter advogado, etc. Seria necessario proteger as pessoas de uma despedida arbitraria. 12 Similar reasons were suggested by Harry Arthurs in a recent study of Federal labour standards in Canada: ...92% of all complaints... were filed by workers who were no longer employed in the same workplace. This striking statistic suggests that some workers are so concerned that they will be fired that they abandon their statutory rights... Workers may not complain because they are ignorant of their rights..., because they fear employer reprisals, or because they lack the stamina or means to pursue their remedies. H. W. Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (Canada: Her Majesty the Queen in Right of Canada, 2006), page 192 220 One could almost say that a company is poorly administered when its managers pay accurately and promptly what is owed to its employees.13

As we saw in section 1.4, compliance can be motivated by different factors and non­ compliance is a relative concept. We will see in Part III that the growers in the cacao region resisted the authority of the Vieira court and resisted complying with the labour rights of cacao workers, while at the same time complying with the aspects of state law which they considered to be "good" or in their interest. Although the non-compliance of employers with labour rights in general, according to the literature, was both notorious and widespread, nonetheless the CLT regime offered little protection for workers who asserted their labour rights during the course of the employment relation. In the words of a former Minister of Labour:

The worker does not go to court against the employer during the life of the employment contract because he is certain to be dismissed in such a case. To give effect to his rights, his only opportunity is after the formal termination of his contract.

Here the Minister pointed to the fear of employer reprisal, which is not disputed by any other authors and which is confirmed in several contested claims before the Viera court, as shown in Part III. Moreover, the "access" problem ~ that is, the fear of employer reprisal — and the caseload problem were related issues because, as Arnold Sussekind, an

13 Jose Martins Catharino, "A Justi9a do Trabalho Brasileira. Evolucao Institutional. Diagnostico, Terapeutica, Prognosticos." Revista do TRT 5 Regiao 3.1 (2000): 125-39, page 129. Catharino was the dean of the Bahian labour bar, The original in Portuguese reads: Pode-se ate dezir que uma empresa e mal administrada quando seus responsaveis pagam correta e pontualmente o que e devido aos seus empregados. 14 Walter Barelli, speaking in his capacity as Minister of Labour (1992-1994), as quoted in Setti, op. tit., fn 4, page 178. The original in Portuguese reads: O trabalhador nao entra na Justica contra o empregador durante a vigencia do contrato de trabalho porque a demissao e certa nesses casos. A opcao que ele tern para fazer valer seus direitos e apos a homologacao da recisao do contrato. 221 architect of the dissidio individual, conceded, "almost all workers who are terminated have something to be claimed".I5

Given that the volume of claims which caused the caseload problem were filed by workers who had already been terminated and that most of these claims had at least some merit, we can conclude that the culture of employer non-compliance was the cause of the caseload problem. The problem could have been alleviated in the long run by requiring employers to accept a union OLT (workplace organization) or by creating a system of labour inspection, but neither of these options was adopted under the CLT regime.16

Finally, the caseload problem was compounded in 1963 when the ETR was enacted. The effect of the ETR was to increase substantially the overall number of claims, 1 7 with only a moderate increase in the available resources. The ETR provided rural workers with an additional incentive to file a claim after termination, when compared to the CLT: the limitation period under the ETR was two years from the date of termination; under the CLT the limitation period was two years from the date of the violation. Thus

15 Arnaldo Sussekind, "A solucao dos conflitos trabalhistas e a Justi9a do Trabalho no Brasil," Revista Forense 349 (2000): 21-8, page 26 16 Arthurs wrote: ...a more pro-active inspectorate...will almost certainly generate more complaints, more enforcement proceedings, and more findings of violation...However, over the medium- to-long- term, the message sent by this approach is likely to prompt more employers to comply with the law and consequently, to reduce the number of violations, complaints and enforcement proceedings. Arthurs, Fairness at Work, op. cit., fn 12, page 192. Labour inspection is the subject matter of ILO Convention 81 of 1947, which Brazil signed in 1956. President Medici renounced the convention in 1971, but it was reinstated under the civilian government of Jose Sarney in 1987. One of the few studies of labour inspection in Brazil was carried out in 2003 by Cardoso and Lage in the construction industry in Rio de Janeiro: Adalberto Cardoso and Telma Lage , "A Inspecao do Trabalho no Brasil," DADOS- Revista de Ciencias Sociais 48.3 (2005): 451-90. According to Evaristo de Moraes Filho, the failure to establish an adequate system of labour inspection was a major failing of the CLT regime and distinguished Brazil from more sophisticated nations (nacoes cultas): Evaristo de Moraes Filho, O problema do sindicato unico no Brasil: seus fundamentos sociologicos (Sao Paulo: Alfa-Omega, 1978). 17 Sussekind, op. cit., fn 15. A statute enacted in 1970 suggested a minimum of 240 claims annually and a maximum of 1500 claims for a labour judge at the local junta level: Lei no. 5.630 de 2 de Dezembro de 1970. 222 claims were kept alive under the ETR that would have been forfeited or lost had the rules of the CLT applied. This distinction had a significant impact on the caseload problem.

7.3 Conciliation

The official name of a local junta was a Junta de Conciliagao e Julgamento (Board of Conciliation and Judgment). The reference to conciliation suggests that the voluntary settlement of individual claims for labour rights was intended as policy goal of Labour Justice. Voluntarism can be defended as a desirable characteristic in a regime of industrial legality when the union-management relation or worker-employer relation was ongoing, but with the dissidio individual the worker-employer relation was terminated in most cases. Conciliation was used more to alleviate the caseload problem than to improve workplace relations. From the perspective of the protection of labour rights, conciliation was suspect when a claimant was induced to settle for less than the full monetary value of their labour rights. Previous studies indicate that claims were often settled at a discount rate out of an aversion to litigate, and we know that a fear of reprisal prevented the filing of a claim during the course of the employment relation. These circumstances led to the commodification of labour rights and generated an "industry of judicial accords"

1R (industria de acordos judiciais).

As noted, conciliation was used as an instrument to alleviate the caseload problem. In 1971, Mericle used a quantitative approach to conciliation, relying on official statistics compiled by Labour Justice. He calculated that the junta judges in the city of Sao Paulo added an average of fifteen new claims each to their docket per day and that the minimum time required hearing a contested claim was one hundred minutes. Given that judicial resources would never be adequate to cope with this exponential growth in workload, conciliation was a systemic imperative.19 The statistics showed that the

Setti, op. cit., fn 4 19 Mericle, op. cit., fn 4 223 overwhelming majority of claimants were successful in winning at least some compensation either through a conciliated settlement or through a judgment, showing that almost all claims filed had at least some degree of merit.20 However, Mericle's quantitative approach does not reveal whether claimants settled for less than the full value of their claim or whether the judgments were "coherent" — as defined in section 1.4 — in the protection of labour rights. The record of conciliation proceedings was thin, consisting only of a statement of the claim and the amount of the settlement, whereas the record in a contested claim was thicker and often provided a basis for comparing the validity or value of the claim to the amount of the judgment. For this reason a qualitative approach, using contested claims, is used in the case study contained in Part III.

Two decades after Mericle's study, Paulo Andre Anselmo Setti used a qualitative approach to the study of conciliation. He found that the caseload of a junta in Campinas created irresistible systemic pressures to resolve as many claims as possible through conciliation. Indeed several lawyers informed Setti that the promotion of career judges was dependent on their ability to dispose of claims by imposing settlements in the conciliation process. Setti's findings were critical of the conciliation process. Many claims settled, he concluded, because the claimants "lack[ed] the stamina or means to pursue their remedies." 21 The decision to contest a claim led invariably to considerable delay before a judgment was issued, the burden of which fell most heavily on the claimant. Recognizing the claimant's vulnerability in this regard, the judges and the lawyers on both sides of the dispute used the prospect of delay as an instrument to induce claimants to accept an early settlement. Respondent (employer) lawyers created delay as a contentious strategy, not only to induce settlement but also to alleviate a client's cash flow problems and to lower the real value of a claim in times of high inflation.

m IBID, page 170. 21 This quote is from Arthurs, op.cit., fn 12. Setti's study is cited in fn 4. 224 7.4 Legal agents

The discussion can now turn from the structural problems of the dissidio individual to the role of the legal agents, first the judges and then the lawyers. While the caseload problem was exacerbated by a lack of sufficient judges, some authors have 99 suggested that the quality of the judges was also a problem. The case study in Part III will show that Judge Vieira was dedicated to the rule of law and issued coherent judgments, within the approach suggested by Kennedy in section 1. 4. While it is therefore safe to conclude that Judge Vieira was a "good judge", the available evidence ~ often anecdotal ~ with respect to other labour judges suggests that the quality of judging varied considerably.

John French conducted a series of interviews with labour leaders who reported a certain "perversity" in the decisions of labour judges in individual disputes. An example provided was a claim filed by a group of women and children who worked in a factory, whose hours of work and safety conditions violated the provisions of the CLT. Their claims were denied by the local junta. According to French's informant, a former union- side vogal (class judge):

When these workers had recourse to the legal system to seek help, the tribunals at the local, regional and national level were unanimous in denying their claims based on the argument that the situation involved "illicit work" and the tribunal "should not become involved" in this type of problem.23

Catherino, op. cit., fn 13; Luiz Roberto Mattos, Justica do Trabalho: Criticas e Propostas para un Novo Modelo (Belo Horizonte: Nova Alvorada Edicoes LTD A, 1997). 23 John D. French and Paulo Roberto Ribeiro Fontes, Afogados em leis : a CLT e a cultura politica dos trabalhadores brasileiros. (Sao Paulo, SP, Brasil: Fundacao Perseu Abramo, 2001), page 21-22. The Portuguese version reads: Quando estes trabalhadores recorriam ao sistema legal em busca de auxilio, os tribunals locais, regionais e nacional eram unanimes em negar suas peticoes baseados no argumento de que a situacao envolvia "trabalho ilicito" e que sobre este tipo de problema "os tribunais devem manter- se alheios." 225 The labour judges in this anecdote appear to have been legal positivists who were more concerned about the formal legal rules than they were about the purpose of the statute, which was to protect labour rights.

Mericle and Setti also criticized the quality of judging in their studies, based on interviews they conducted with the judges themselves and with the labour lawyers who appeared in their courts. The judges admitted that they brought their "background prescriptive theory" to the rule of law, as Kennedy suggested, and one judge told Mericle that career judges identified with employers more than they did with workers:

The career judge, because of the cost and difficulties of learning the law, come, as a general rule, from the well-off classes, and thus are psychologically inclined, in light of their social, economic, and cultural formation, to better understand the point of view of the employers than of the workers.

Setti's understanding was somewhat different. According to the lawyers he interviewed, the posture of some judges favoured claimants while that of other judges favoured employers; practitioners came to know the leanings of the various judges and used that knowledge in the conciliation process. This trite observation reinforces the significance of time and space in the study of Labour Justice.

The "background prescriptive theory" of most vogais (class judges) was more consistent than that of career judges because the appointment process ensured that they would tend to favour either the claimant or the respondent side of a dispute. The issue with respect to the vogais was therefore less their "ideological project" than the nature of their contribution to the dissidio individual process. According to both Mericle and Setti, the vogais were pro-active in the conciliation process but were reduced to the level of spectator in a contested claim because the rules of litigation were too legalistic. When compared to a career judge, however, the vogais brought more life experience to the

Mericle, op. cit., fn 4, page 165 226 process and may have contributed in this way. The authors were clear that the real decision-maker was the career judge, although one career judge told Mericle that he had been out-voted by the vogais on at least ten occasions during his fifteen years on the bench. 5 A written dissent by a vogal was a rare event, although split decisions and conflicting reasoning were relatively common among career judges, including at the regional and TST level.

With respect to labour lawyers, Mericle and Setti both directed sharp criticism at the labour bar and suggested that labour lawyers were often self-interested and neglectful of the interests of their clients.

The Campinas labour bar was divided along worker-employer lines and the approach of an individual lawyer depended on whether he or she acted for claimants (workers) or for respondents (employers). Setti interviewed several lawyers from the labour bar in the period 1991-1992, made some personal observations through contact with staff lawyers at the metalworkers union, and attended sessions of the local junta. According to Setti, the lawyers who acted for claimants were on the political left and often viewed Labour Justice as a space in which class struggle took place on a daily basis, to the extent that the more ideological among the claimant lawyers refused even to discuss settlement because labour rights were not commodities. Setti also found that claimant lawyers were often alienated from their clients because their clients were unsophisticated and uncomfortable within the juridical field. Although these lawyers were ultimately required to follow the instructions of their clients, the clients in turn were dependent on the advice of their lawyers, allowing the lawyers to control the claim process by making effective recommendations to their clients.

While Setti encountered claimant lawyers who avoided settlement, Mericle's observations were to the contrary. According to Mericle, self-interested claimant lawyers

IBID, page 193. 227 were commonplace twenty years earlier in Rio de Janeiro. Claimant lawyers worked on a contingency fee basis, usually 30% of the amount of a settlement or judgment, and those who acted out of self-interest tended to recommend an early settlement because the time and effort required to contest a claim outweighed the potential of collecting a higher fee. Mericle described a caste of labour lawyers known as paqueiros (literally "hunting dogs" or more idiomatically "ambulance chasers") who carried on a volume trade by representing claimants and settling the claims of all of their clients in conciliation. Contesting a claim was inconvenient both for the claimant and for the lawyer, so the paqueiros used the threat of delay and the uncertainty of success as tools of the trade to induce their clients to settle for less than their lawful entitlement.

Setti also found that there was a degree of corruption within the system because some claimant lawyers were prepared to accept bribes from employers to settle cases. Of course, employers acted in such matters through their own lawyers so the corruption involved both sides of the labour bar. The respondent lawyers tended to be pragmatic and their approach was tied to the instructions of clients who were often familiar with the juridical field. According to Setti, some respondent lawyers colluded with the claimant's lawyer to inflate the value of a claim, enabling lawyers for both sides to collect a higher fee. In other cases the practices of the "industry of judicial accords" {industria de acordos judiciais) induced a claimant lawyer to inflate the claim on his or her own initiative, which in turn exacerbated the caseload problem. Setti admitted to the existence of inflated claims and blamed claimant lawyers for this practice:

The "industry of judicial accords" is not maintained by the actions of claimants, but by a strategy of actions which are attributable to claimant lawyers.

Catharino, op. cit, fh 13. Setti, op. cit., fh 4, page 107. The original in Portuguese reads: A industria dos acordos judiciais nao e alimentada pelas acoes dos reclamantes, mas sim por uma estrategia de acao propria aos advogados dos reclamantes. 228 There were three strategic reasons for a claimant lawyer to inflate a claim. The first was to pressure the employer to settle in order to avoid the cost of litigation and the risk of liability. The second was that many employers did not keep proper records and the rule of the CLT regime was that an employer was liable for the labour right asserted in the claim if payroll records and receipts were not available.28 The third was that many employers did not respond to claims and/or did not appear to contest them. The rule in the CLT regime was that the absence of the respondent resulted in a declaration of revelia (literally rebellion), the consequence of which was that the facts pleaded in the initial (statement of claim) were deemed to be admitted (confissao ficta).

The ability and integrity of the labour bar no doubt varied throughout the history of Labour Justice. The previous studies pointed to self-interest and even corruption among members of the labour bar, while the case study of the Vieira court in Part III suggests that the performance of labour lawyers in Ilheus was uneven and ranged from a high degree of ability and integrity to the lower standard identified by Mericle and Setti. We saw in Chapter 2 that the cacao region was home to a specific legal culture, and we will see in Part III that Judge Vieira benefited from the input of some members of the Ilheus bar in preventing the corruption of the regional legal culture from infecting the culture of the Ilheus junta.

7.5 As a form of contention

Despite the limitations shown by the previous studies, the dissidio individual provided the agrarian social movement with a useful form of contention, both for the immediate purpose of mobilizing in support of labour rights and for the long term purpose of raising collective consciousness. The limitations of the dissidio individual could be overcome through a strategic approach which combined the filing of claims with other forms of contention.

CLT Article 772 229 During the Fourth Republic, ULTAB used the dissidio individual as a form of contention in its campaign for the minimum wage. As part of this campaign, ULTAB conducted an illegal strike among colonos in Riberao Preto in 1957 which was broken up when the police intervened at the behest of the growers, in step with the "grower-police alliance" which characterized the agrarian structure in rural Brazil. In the wake of the police intervention, ULTAB led a delegation which met with the Minister of Labour to demand that he recognize the rural union. The Minister responded that recognition would be counter-productive because the grower-police alliance was outside the control of the central state; however, the Minister acknowledged that the colonos were legally entitled to the minimum wage and offered to establish a local junta to hear their claims. As a result of this meeting, a junta was established in Riberao Preto on May 13, 1957 and proceedings before the junta immediately became the "principal focus of the rural labour movement".31

The first president of the junta was Alfredo de Oliveira Coutinho whom the ULTAB activists thought to be biased in favour of the growers. Within three months of his appointment, ULTAB attempted to have Judge Coutinho removed from office through a petition with the following endorsement:

The labourers, through many struggles, attained a labour court, but the bosses' class, with its unity, obtained the judge.32

ULTAB's disaffection may be attributed to the judge's "background prescriptive theory" which became evident during the course of a dissidio individual in June 1957, field by the rural union on behalf of Joao Anunciato, a colono who worked on the

29 Welch, Seed, fh 8, page 214 30 The entitlement of colonos to the minimum wage was not at issue in the case because the CLT entitled rural workers to the minimum wage and the TST had interpreted the language of the CLT as including colonos, in a case involving vacations with pay. Welch cited a decision of the TST to support this proposition: TST 5365/52 Roberto Bueno. 31 Welch, Seed, fn 8, page 217. 32 IBID, page 219-221. This is Welch's translation. 230 Fazenda Lagoa which was owned by Ihigayochi Nagayochi. The issue for Judge Coutinho to decide was whether in kind payments, including food grown by the worker and his family for their own consumption, should be included in the calculation of the minimum wage. The judge ruled that the in kind payments ought to be included as wages, and when added to the cash payments the claimant had been paid more than the minimum wage and on this basis dismissed the claim. This outcome convinced many colonos to abandon the colonato because they were better off to work as diaristas and be paid the daily minimum wage in cash. Judge Coutinho may have been "the boss's judge" — as the ULTAB petition suggested ~ but the statutory norms were themselves an obstacle to the union's success because the CLT regime allowed the grower to deduct in kind payments from the minimum wage.

A further obstacle was the invisibility of the economic role of Anunciato's wife whose labour was used, among other things, to grow the food that the family consumed, the value of which was deducted from the minimum wage. As a form of labour control, the colonato contract was based on patriarchal family relations because the contractual relation was male to male, between the grower and the male head of family. This invisibility was reinforced in the way ULTAB's lawyer framed the case, reproducing the patriarchal relation between Anunciato and Nagayochi and playing into the patriarchal "background prescriptive theory" of the judge.

While the outcome of the particular case might have been different with a different judge, the usefulness of the dissidio individual as a form of contention depended

The uncontested facts in Anunciato's case illustrate that the colono contract was a form of labour control. Anunciato contracted to care for 5458 coffee trees at the rate of Cr $ 2.500 per year for each 1000 trees, giving him an annual income of Cr $ 13.645 per year or Cr $ 1.137 per month. The regional minimum wage at the time of the litigation was Cr $ 3.200 per month so Anunciato was earning, prima facie, only about one-third of the minimum wage. However, in addition to the wages paid in cash, Anunciato received in kind payments, in the form of housing, firewood, free coffee beans, and the right to plant vegetables between the rows of coffee trees.After 1963, this type of payment (food grown by the worker for sustenance) was required to be in addition to the minimum wage and required a separate contract: ETR, Article 41. 231 on the repertoire of contention deployed in the campaign as a whole rather than on the outcome of a particular claim. By failing to incorporate the economic role of women in agriculture into its campaign strategy, ULTAB allowed a positivist interpretation of the statute to prevail. ULTAB formally called on women to join the appropriate rural union and offered to campaign for women's issues, but its performance in the campaign for the minimum wage shows that patriarchal notions were reproduced within the agrarian social movement. Despite the failure of its litigation strategy in this particular case, the union remained as a more plausible vehicle for the enforcement of the minimum wage than the junta because the junta's efforts, even in the event of a favourable decision, were restricted to the juridical field, as we will see in Part III. The Minister's advice that a local junta was a better apparatus than a union was misguided because a rural union ~ or some other organizational form ~ was a pre-requisite for conducting the contentious campaign that the circumstances required.

The notion of including women in the campaign involved an appeal to class consciousness that was broader than that of the trabalhista project.34 In a study of Labour Justice in the Municipality of Jundiai during the Fourth Republic, Rinaldo Varussa emphasized the relation between the dissidio individual and the position of industrial workers in the broader community, showing that contention over labour rights had an impact on workers in their daily lives outside the workplace. In Jundiai a group of socialist lawyers affiliated with the PSB36 worked with industrial workers to use the dissidio individual as a form of contention with the expectation that compliance in the workplace would flow from the outcome in the juridical field. Outcomes in the juridical field were not always favourable and compliance in the workplace did not always follow

34 The extent of women's participation in organized labour in Brazil was debated by John French and Joel Wolfe: Joel Wolfe, "Anarchist Ideology, Worker Practice: The 1917 General Strike and the Formation of Sao Paulo's Working Class," The Hispanic American Historical Review 71.4 (1991): 809-46; French, John D., "A cautionary note on the Historia n's Craft" (The Hispanic American Historical Review. Vol. 71, No. 4, Nov. 1991) 847-855;Joel Wolfe, "Response to John French," The Hispanic American Historical Review 71.4(1991): 856-8. 35 Jundiai is a railway and industrial city near Sao Paulo's ABC region. 36 Partido Socialista Brasileira, the party of Joao Mangabeira and Francisco Juliao. 232 a favourable outcome, but the dissidio individual was used to build solidarity and to mobilize support for the claimant from other workers.

Morel and Mangabeira compared the approach of the "old unionism" of the Fourth Republic and the "new unionism" movement to several dissidio individuais at the CSN {Companhia Siderurgica National) operation in Volta Redonda. In each instance the Volta Redonda metalworkers union used the dissidio individual as a form of contention. However, during the Fourth Republic the dissidio individual was used in a campaign for labour rights while the "new unionism" used the dissidio individual in a campaign to construct an OLT (workplace organization).38

According to Morel and Mangabeira, during the Fourth Republic the union leadership supported individual claims for labour rights because when a claim was won in the juridical field on behalf of an individual worker the employer complied with the judgment and applied the decision more generally throughout the workplace. This was an example of cumplimiento normativo that flowed from the nature of the CSN as a state enterprise whose management prided itself of the dddiva theory that Labour Justice was the legitimate protector of labour rights.

The "new unionism" leadership went a step further by incorporating the dissidio individual into a strategy of building a collective consciousness within the workplace as a step towards the construction of an OLT or comisao de fdbrica. In this approach the

The full name of the union was Sindicato dos Trabalhadores das Industrias Metalurgicas Mechanicas e de Material Electrico de Barra Mansa, Volta Redonda e Barra do Pirai: Morel and Mangabeira, op. cit., fn 2, page 107. Dinius also studied Labour Justice claims at the CSN: Dinius, Oliver. "Brazilian Labor Courts and Industrial Relations Under State Capitalism" (unpublished manuscript, 2008, on file). 3 In the language of the "new unionism" movement, the OLT was known as a comisao de fabrica (factory commission). More recently the comisao de fabrica model has been improved and institutionalized as a CSE (Comite Sindical de Empresa). 39 According to Morel and Mangabeira: The union executive sought to make recourse to Labour Justice a means for collective action in the defense of the workers' rights. The original in Portuguese reads: 233 union's legal department was of strategic importance because the union's staff lawyers organized group claims for filing at the local junta rather than requiring individual claimants to step forward alone. Membership in a group shielded an individual worker from the fear of reprisal so that claims could be filed during the course of the employment relation rather than following the general rule that we saw in section 7.2, that claims were filed only by workers who had been terminated. The lawyers used the process of organizing a group claim to mobilized workers to act in their own collective interest. In addition to the claimants, other workers attended the junta hearings to show solidarity, to which the labour judges responded in a supportive manner. This collective approach spread to other metalworker unions within the CNM/CUT, including the Campinas union, where Setti found that one of the lawyers from the CSN union had been hired to implement this form of contention.

7.6 Conclusion to Chapter 7

We saw that the trabalhistas held out the dissidio individual as an "ideal model" for the protection of labour rights, based on its capacity for expedition. The chapter reviewed the previous studies of local juntas that in practice deviated considerably from this purported ideal. The caseload problem led to excessive delay, and conciliation was an imperfect response to the caseload problem, but at the heart of the caseload problem was the fear of employer reprisal which effectively limited access to the process. This fear of employer reprisal resulted from one of the structural defects in the CLT/ETR regime which contributed to the problem of non-compliance with the ETR, which was that the CLT/ETR regime had no effective mechanism to prevent emploter reprisal. The OLT and a labour inspectorate were proposed as alternative or complementary mechanisms that could have been used to reduce the caseload problem in the long term by confronting the issue of employer compliance at the workplace level through an

... a direcao do sindicato buscou tomar o recurso a Justica um canal de acao coletiva na defesa dos direitos dos trabalhadores. 234 institution that was relatively shielded from the threat of reprisal. The chapter also suggests that the performance of legal agents, no less than structural deficiencies, caused the dissidio individual to fall short of the degree of expedition required by the purported "ideal model". The failure of the CLT regime to address the reprisal issue, combined with its undue emphasis on conciliation, resulted in labour rights being commodified in the dissidio individual process.

The chapter provided two benchmarks by which the expedition of the Vieira court will be measured in Part III: the first is the "ideal model," and the second is the performance of the juntas examined in the previous studies considered in this chapter. However, the purpose of the case study of the Vieira court is to examine the quality of its relation with rural workers, for which the proposed standard is "coherence", as defined in section 1.4. While the previous studies are helpful in demonstrating the extent to which Labour Justice relied on conciliation, and in explaining the reasons for this reliance, the case study in Part III is a qualitative study, relying on the contested claims of rural workers in order to examine the quality of the relation between the Vieira court and rural workers.

Finally, the experience of the agrarian social movement revealed some of the limitations of the dissidio individual as a form of contention in the campaign labour rights, while the experience of the metalworkers at the CSN showed that the usefulness of the dissidio individual depended on the relation between the juridical field and the workplace and that workplace compliance could be enhanced by a strategic use of the dissidio individual as a form of contention.

235 Part III: The Vieira court

Part III is a case study of the Ilheus junta during the lifespan of the ETR (1963 to 1973); the junta is referred to in the case study as "the Vieira court" because Judge Antonio Vieira served as president of the junta from its inauguration until September 1972. The Vieira court occupied a specific social space within the cacao region, with a specific rationality and rules of conduct that regulated interpretation, inquiry and debate within the social space. The Vieira court was autonomous within the region to the extent that it resisted the influence of the regional elite, while at the same time its autonomy was limited by the supervisory jurisdiction of the TRT5 {Tribunal Regional do Trabalho of the 5th Region) in Salvador.

The case study is organized around the notion that the Vieira court constituted a juridical field ~ a concept introduced in section 1.3. Chapter 8 examines both the juridical field and the role of the legal agents — Judge Vieira and the Ilheus labour bar ~ active within it. The chapter uses an interactional approach to examine the way in which the junta asserted its authority within the region's existing social network, including the regional elite and the rural unions, showing how the legal culture fostered within the junta clashed with the regional legal culture considered in section 2.4. Chapter 9 is the first of two chapters that considers the strengths and weaknesses of the dissidio individual as a form of contention within the Vieira court. Chapter 9 is concerned with issues of procedural fairness while Chapter 10 focuses on the core labour rights which the dissidio individual was designed to protect.

With respect to the argument presented in section 1.7, this part will demonstrate that the Vieira court provided a coherent approach — as defined in section 1.4 — to the interpretation of labour rights and to the enforcement of its own judgments. To this degree the Vieira court did not substantially contribute to the problem of non-compiance

236 with the ETR in the cacao region. Indeed, we have seen in previous chapters that non­ compliance was the result of three factors from outside of the juridical field.

This case study comprises a qualitative study of contested claims filed by rural workers in the Junta de Conciliacao e Julgamento de Ilheus (Ilheus Board of Conciliation and Judgment) during the lifespan of the ETR,1 using a case-in-context approach.2 Although this approach was developed for legal education in common law jurisdictions, where the traditional case law method was often ahistorical or lacking a social context, this socio-legal study adopts a similar method to illustrate the relation between the juridical field and the social field. The record of a contested claim in the Viera court is limited, and may include a written statement of claim (initial), a summary of the evidence, argument and reasons for judgment, and a series of court documents related to enforcement. In a case involving an appeal to the TRT5 or to the TST (Tribunal Superior do Trabalho), the record may be enriched by the written argument of counsel and the reasons for decision of the appeal judges. Admittedly, these are "elite sources"3 and "mandarin materials".4 However, what I have attempted is to interpret these sources

1 The closed files of the junta are archived at the State University of Santa Cruz (UESC) in Ilheus. Until recently, the practice of Labour Justice was to burn its closed files because it lacked the proper storage facilities. The closed files of the Itabuna junta apparently were burned, but the Ilheus files were saved and stored in the documentation center known as CEDOC (Centro de Documentacao e Memoria Regional) where they are organized as the Archivo Juridico Joao Mangabeira. Janete Ruiz de Macedo, the director of CEDOC, took the initiative to save the Ilheus archive and more recently social historia ns have worked with labour justice to save the archives in other jurisdictions. Further comments on the archive appear in Appendix A. 2 The case-in-context approach is similar to "legal archaeology" or an "enriched case method". In the common law tradition, the example most cited is A. W. B. Simpson, Leading cases in the common law (Oxford; New York: Clarendon Press; Oxford University Press, 1995). Angela Fernandez provides a recent Canadian application of the method in "The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent," (2008, ssrn.com/abstract=984163). Debora L. Threedy suggested a methodology for the United States in "Legal Archaeology: Excavating Cases, Reconstructing Context," Tulane Law Review 80 (2006): 1197. 3 Mary C. Karasch, Slave life in Rio de Janeiro. 1808-1850 (Princeton, N.J.: Princeton University Press, 1987) 422., page xvii 4 For the debate over the use of Mandarin materials between CLS (Critical Legal Studies) scholars and their critics, see Duncan Kennedy, A critique of adjudication : fin de siecle (Cambridge, Mass.: Harvard University Press, 1997), page 266. For the opinion of a CLS legal historian, see Robert W. Gordon, "Critical Legal Histories," Stanford law review 36.1/2, (1984): 57-125, page 120: 237 and materials in a manner which contributes to the nascent subaltern history of the cacao region which was reviewed in Part I. According to Brian Simpson, this case-in-context approach can uncover the extent to which a judge was able to resist pressure from outside of the juridical field.5

...the Mandarin ideology may represent simply an elaborated, purified, and formalized version of a consciousness whose primary producers are to be found all over the society. 5 Simpsn, op. cit., fn 2, page 231. According to Simpson: Merely, however, to entrust a decision to the court will not, of course, guarantee that the ideal [i.e. the rule of law] will actually be achieved: there are many examples of legal decisions which fall short of this. That is the nature of ideals. There are, however, counter-examples, and these, too, can be appreciated if only the context of the decision is understood: only thus can we understand the pressures which were resisted. 238 Chapter 8: The social space

8.1 Introduction to Chapter 8

In Chapter 2 we saw that in the process of accumulating land the regional elite constructed a legal culture that was based on caxixe, posse and an informal credit system. This was the regional legal culture which Judge Vieira confronted when attempting to impose his authority as president of the Whtus junta. This chapter begins by considering the institutional structure of the Vieira court and then proceeds to consider the clash between its legal culture and that of the region, through a discussion of the court's interactions with the labour bar, the coronets, and the rural unions.

The Vieira court is an appropriate choice for this case study because it represented Labour Justice in the cacao region during the lifetime of the ETR (1963-1973). The fact that its entire archive remains available for academic study (see Appendix A) and the fact that the junta was dominated throughout the period in question by the attractive personality of Judge Vieira (see section 8.3) are both fortuitous events. The question remains of how representative the Vieira court was of Labour Justice in general, both with respect to other time periods and other parts of Brazil. We saw in section 7.1 that the critical or sociological study of Labour Justice is in its infancy and that qualitative analysis, such as the present study provides, is rare and limited. I am mindful of the admonition of Morel and Mangabeira ~ also referred to in section 7.1 — that conclusions about Labour Justice should be limited in time and space. I endorse this approach both because of the infancy of studies of this nature and because the history, size and nature of the institution of Labour Justice suggest that results may vary widely from one junta to another, from one judge to another, and from historical period to another. This study of the Viera court provides evidence of what happened in one important region during one significant historic period, in support of my argument that non-compliance with the ETR resulted from various factors outside this particular juridical field. The study also

239 contributes to a practical understanding of how Labour Justice functioned in the protection of labour rights, allowing others to pursue further studies, for which the present study may provide a comparative model.

As a judge appointed from outside the region, Judge Vieira followed in the tradition of the district judge Quiz de direito) whose role in the construction of the regional legal culture was to act as an independent arbiter between competing elite interests. Although the district judge was sent to uphold the law of the central state, he was forced for practical reasons to accommodate regional interests in order to maintain the rule of law. Judge Vieira faced a greater challenge than most because of his mandate to protect labour rights. His commitment to the rule of law, as Simpson suggested, can be measured by the extent to which he compromised these rights in order to accommodate the regional interest.

8.2 The junta and the "ideal model"

This section contains a discussion of the institutional character of the Vieira court and is organized around a comparison between the Vieira court and the juntas featured in the previous studies reviewed in Chapter 7, including the "ideal model," based on the notion of expedition, which was identified in section 7.2.

6 This idea was expressed by Andre Riberio: ... the judge was supposed to be an outsider, without relatives or family ties in the place where he was charged with upholding Imperial law above the local interest of the family blocs which controlled the municipality. But, in reality, his decisions were a reflection of the compromise which connected local and national interests which were in conflict. ,Andre Luis Rosa Ribeiro, Familia. Poder e Mito: o municipio de S. Jorge de Ilheus (1880-1912) (Ilheus , Bahia, Brasil: Editus, 2001), page 85. The original in Portuguese reads: ...o juiz era supostamente um estranho, sem parentes ou lacos de familia no lugar no qual estava encarregado de manter a lei imperial acima dos interesses locais dos blocos familiares que controlavam os municipios. Mas, na realidade, suas decisoes eram reflexos do compromisso que ligava os interesses local e nacional em conflito. 240 We saw in section 4.6 that the Ilheus/Itabuna STR was recognized by the Ministry of Labour in 1957. This was followed in 1958 by the installation of a local junta in Itabuna, whose jurisdiction extended to the comarcas (judicial disricts) of Itabuna and Ilheus, which taken together encompassed most of the cacao region.7 The choice of Itabuna over Ilheus as the initial seat of the junta coincided with the decision of the STR to locate its headquarters in Itabuna, the hub of the region's road transportation system. In its formative years the caseload of the Itabuna junta consisted almost exclusively of claims under the CLT, filed by workers in the formal economy, because rural workers did not yet have the protection of the ETR. While rural workers were already entitled to certain labour rights — including the minimum wage (see Appendix C) — the available evidence suggests that the Ilheus/Itabuna STR made no use of the dissidio individual as a form of contention prior to enactment of the ETR. After the enactment of the ETR, the president of the Itabuna junta pleaded with the region's growers to respect the minimum wage because the junta's caseload was overwhelmed by the claims of rural workers who were denied it. Although the junta president did not attribute these claims to any campaign by the STR, his plea suggests that the dissidio individual was being used as a

o form of contention at least in this connection.

We saw in section 4.6 that in May 1962 the Minister of Labour announced in Itabuna that the policy of the Goulart government henceforth was to recognize rural unions. In accordance with that policy, in August 1962 the government expanded the network of local juntas into Ilheus and other centers of agricultural production throughout the state of Bahia, in anticipation of the upsurge in claims from rural workers now that their unions would be recognized. The geographic jurisdiction of the Ilheus junta was

7 Lei No. 3492 de 18 de Dezembro de 1958. Several juntas were established at the same time in Minas Gerais, Pernambuco and elsewhere in Bahia. It appears that the archives of the Itabuna junta from this earlier period were burned for lack of storage facilities. 8 Diario da Tarde. March 1964. The claims were prompted by the reluctance of growers to meet the minimum wage level set by the Goulart government on February 24, 1964, when the minimum wage was doubled. See Appendix D. 9 Lei 4.124 de 27 de Agosto de 1962; and see section 7.2. 241 identical to that of the comarca of Ilheus, which included various cacao producing municipalities such as Urucuca, Itajuipe, Coaraci and others. The 1960 census showed that the Municipality of Ilheus had approximately twenty thousand rural workers while the total number of rural workers in the comarca of Ilheus was approximately forty thousand.10

According to the enabling legislation, the Ilheus junta was entitled to one judge — the president of the junta — and a secretariat consisting of a Chefe (chief clerk), one Justice Official (Oficial de Justiga), and a porter (Porteiro de Auditorio). The first Chefe was an Ilheus lawyer named Jose Negrao Pereira, who served throughout Judge Vieira's term of office.

The court was inaugurated on March 14, 1964, twenty months after the enabling legislation was enacted. The inaugural ceremony took place in the court offices which were located in the centre of Ilheus, overlooking the mouth of the bay.11 Judge Vieira was sworn in by Jose Santos do Prado, the President of the TRT5 (the regional tribunal), and in turn Judge Vieira swore in the two vogais (class judges). A local lawyer, Eucario Souza Bastos, was the vogal representing employers and, a trabalhista labour leader from the port workers' union, Felisbelo Gomes dos Santos, was the vogal representing workers.12 A local labour lawyer, Nilo Cardoso Pinto, was sworn in as a supplementary {suplente) judge whose function was to preside at the junta in the absence of Judge

Ana Maria Bianchi dos Reis, Diagnostico Socio-Economico da Regiao Cacaueira: Mao-de-obra e elementos de relacoes de produ cao (Ilheus : CEPLAC, 1976), passim. These numbers should be taken as an estimate because statistical information from this period is unreliable, and statistics about rural workers are particularly unreliable because the census approach to counting women workers was variable. The total number of cacao workers in the region has been estimated at 150,000, although it is unclear to what extent women are included in this number: Robert E. Price, Rural Unionization in Brazil (Madison, Wis.:, 1964). 11 The offices were originally located in the Praca Jose Marcelino. At present they are located near the market in the neighbourhood of Malhado, on land designated by Antonio Olimpio when he was mayor. 12 The name of union was Sindicato dos Conferentes de Carga e Descarga do Porto de Ilheus: Barbosa, Carlos Roberto Arleo, Noticia Historica De Ilheus: Edicao Comemorativa do Centenario De Sua Elevacao a Cidade (Rio de Janeiro: Livraria Editora Catedra, 1981), page 147. Each vogal had a suplente (supplementary) who sat in his absence, although the judge sometimes proceeded with only one vogal present. 242 1 "X Vieira. Judge Vieira spoke to the assembled dignitaries, and in his speech he identified "social justice" as "a point of equilibrium between capital and labour".14 The junta held its first hearing on March 30, 1964, on the eve of the military coup.15 We know that rural workers in Ilheus had access to union representation at the time the Vieira court began to hear cases. An aspect of union representation was that the union was able to settle claims for labour rights in some circumstances without having recourse to Labour Justice. The CLT regime included provisions which were paternalistic or protective towards workers because many workers were illiterate and unaware of the value of their labour rights. Since labour rights were a matter of public policy, the state protected labour rights by reserving the right to nullify any release (quitagao) provided by a worker to an employer unless formally authenticated by an appropriate authority. Authentication also protected the employer against further claims and provided the employer with finality and because the validity of an authenticated quitagao could be challenged only in unusual circumstances. Since 196216 this authentication function was formally shared with the unions who were equal given authority to authenticate the release of individual labour rights. While it may seem reasonable to accord this authority to unions which were authentic protectors of labour rights, in the case of "phantom unions," or union leaders who were mere pelegos (government agents), or for unions that took a bureaucratic approach to representing workers, this authority was open to abuse. As a result, when the political regime changed in 1962, this authority took on a different character when union leaders such as the Ilheus Renovadores adopted a bureaucratic

13 When he left the junta in 1972, Judge Vieira was replaced by a series of substitute and acting presidents before the appointment of Judge Maria Nunes da Silva Lisboa as his permanent successor on 30 March 1973. Judge Lisboa served only until 8 November 1973. After another series of substitute and acting presidents, Judge Lisboa was succeeded by Judge Antonio Raymundo Viveiros Laranjeiras Barbosa, who served as president for 18 years, from 11 March 1974 to 24 August 1992. 14 Diario da Tarde, March 19, 1964. The original in Portuguese reads: ...alto sentido do Justica social, ponto de equilbrio entre o capital e o trabalho. 15 The coup began the night of March 31 and the military were in power by April 1, 1964. 16 Lei No. 4.066 de 28 de Maio de 1962.Workers often signed documents drafted by their employers with a fingerprint. A signature by fingerprint was valid; as an alternative, a worker could authorize another person to sign on his or her behalf (rogo). In either case the document also required the signature of two witnesses. 243 approach to settling claims for labour rights. Upon termination, many workers released their labour rights in the union office, without recourse to Labour Justice, although others proceeded directly to a labour lawyer or to the junta office without union representation. In some cases Labour Justice was called upon to step in to protect labour rights against union malfeasance.

Access to Labour Justice was facilitated by several provisions that allowed a rural worker to pursue a claim without any financial impediment. There were no filing fees and Ilheus had many lawyers who were prepared to act on a contingency fee basis, on the assumption that virtually any claim would have at least some viability, as we saw in section 7.2. An unrepresented claimant could rely on the assistance of the secretariat, which was required to accept an oral claim and commit it to writing in the court office. The hearings were inquisitorial, rather than adversarial, and the junta actively enforced its own judgments. With access facilitated in this manner, a claimant could proceed from start to finish without legal representation, provided that the claim was not contested vigorously. Court costs were no disincentive to the filing of a claim. Although court costs were routinely assigned to an unsuccessful party and were evenly divided between the parties when a claim was conciliated, these costs were regularly waived for indigents. Since an indigent was defined as someone who earned less than twice the minimum wage, all rural workers were effectively exempted from paying court costs. However, although the lack of formal financial barriers was to the claimant's advantage, the real cost to rural workers was hidden. Most claimants relied on legal representation in any event and paid their lawyers up to 30% of the value of a judgment, and in addition their claims were often settled for less that their formal entitlement. As noted earlier, the trabalhistas presented labour rights as statutory minimums that could not be derogated, but in practice this minimum was often ignored by employers and rarely available through Labour Justice.

244 The disposition of claims in the Ilheus junta followed the general pattern suggested in the earlier studies considered in Chapter 7, in which the overwhelming majority of claims were uncontested. There were three categories of uncontested claims: abandonment, conciliation and authentication (homologagao). With respect to the first category (abandonment), many workers filed a claim upon termination and then failed to follow through with the junta process for various reasons. A claim was deemed "abandoned" if the claimant failed to attend for the first appearance. With respect to the second category (conciliation), when both parties were in attendance at the first appearance, many claims were settled in conciliation, which suited the convenience of the claimants, the lawyers and the junta. The third category of uncontested claims (authentication or homologagao) consisted mainly of applications by employers who turned to Labour Justice — rather than to a union ~ for the protection of finality in the rescission of employment contracts. The junta had the authority to authenticate a release of labour rights (quitagao), as required for workers with over one year of service. Employers seeking to rescind an employment contract could request authentification, ratification or approval (homologagao) from the junta.

According to the junta's filing system, the percentage of claims in these three categories was as follows:

Abandoned (arquivado or archived) 35 %

Conciliated (conciliagao or conciliation) 37 %

Authentication (homologagao) 22 %

The case study is concerned only with remaining 6% of the claims, that is, the contested claims, which are found mainly in the archival category marked execucao (execution). Within this 6%, only a small number were filed by rural workers because 90% of the caseload of the Vieira court consisted of claims filed under the CLT by

17 CLT, Article 477 . See section 8.6. 245 workers in the formal economy. During the nine year period covered by the case study only ninety contested claims were filed by rural workers under the ETR, an average of

1 R ten per year. Within these ninety claims approximately 10% were filed by women or involved a group claim in which a woman was a member of the group. With few exceptions, all workers who filed the contested claims had been terminated; and in half of the 10% of contested claims filed by workers who had not yet been terminated, termination followed the filing of the claim. In one anomalous case the claimant was re­ hired by the respondent when he filed a claim because the respondent was seeking to avoid liability.19

The purpose of the case study is to examine the quality of the relation between the Vieira court and rural workers, which is why it is based on the ninety contested claims filed by rural workers. Although ninety would be a small number in a quantitative study, in a qualitative study, such as this case study, an analysis of ninety decisions — most of which involve the same judge — allows us to reach the conclusions with respect to expedition and "coherence" that this study requires. As indicated in section 7. 3, the archival record for conciliated claims is too thin to determine whether or not a conciliated settlement reflects the fair value of the claim or, in the language of commodification, of the labour rights in dispute, whereas the available record in a contested claim allows an evaluation of the degree to which the claimant's labour rights were protected, or the degree to which justice was granted. For this purpose, an analysis of these ninety contested claims is sufficient to reach conclusions with respect to the Vieira court's relation with rural workers, although it is worth repeating that these conclusions are limited in time and space. The cases which are specifically referred to in Part III (see Appendix A) are representative of the ninety contested claims and were chosen because

The total number of case files in the court's archive was approximately 20,000, covering a period much longer than that of the case study. The number of files in each of the closed file sections described above was: archived, 6529; conciliation, 7068; execution, 1241; authentication, 4125. 19 JCJ 49. See Appendix A, and see section 10.2 for the details of this claim. 246 of their representative quality. A case which contradicts a representative case is specifically noted.

Another limitation of this case study is that Judge Vieira may have approached a contested claim in a manner different from his approach to conciliation. We will see that about 25% of the contested claims in question were appealed to the TRT5, which suggests that Judge Vieira may have been more cautious in a contested claim than in conciliation out of deference to, or fear of, the supervisory jurisdiction of the regional tribunal. However, most of the appeals were filed by respondents rather than by claimants, indicating that if the judge acted out of caution in contested claims this he would have favoured the respondent growers rather than the claimant rural workers, and a conclusion of the study is that the judge's decisions were "coherent" in the sense that they were protective of the labour rights of rural workers, as the trabalhista project intended. Another factor which militates against the suggestion that the judge may have taken a less protective approach to labour rights in conciliation is that most rural workers had legal representation in their claims. While the previous studies — considered in Chapter 7 ~ indicate that labour lawyers were often parties to a less protective approach in conciliation, these studies also indicate that the lawyers approached conciliation with one eye on the judge, taking into account what the outcome would likely be in a contested claim before the particular judge in question. In the case of Judge Vieira, lawyers for both sides would have anticipated an outcome in which labour rights were protected. The specific character of the Ilheus labour bar is considered in section 8.4.

The effort of the Vieira court to conduct itself expeditiously or according to the "ideal model" was facilitated because its caseload was relatively light when compared to other juntas. In section 7.2 we saw that other juntas added fifteen or twenty new cases to their docket each day, while the Vieira court added only three or four. Although the

The approximate number of claims filed per month for the years of the case study were as follows: 1964 :69 247 docket was relatively light when compared to juntas in the main industrial centers, it was well in excess of the 240 case annual minimum fixed by statute in 1970. The court sat daily from Monday to Friday, beginning at 13:30, and at this pace was able to dispose of most cases on the docket at the first appearance, as the "ideal model" had envisaged. This may have imposed a hardship on the parties because they were expected to be ready to proceed at the first appearance and to have their witnesses available. The prospect of an immediate hearing may have induced settlement in many cases and in most cases it worked to the claimant's advantage because the threat of delay was reduced, leaving the claimant under less pressure to accept a settlement for less than his or her formal entitlement. Claims by workers in all sectors were contested on average only once a week while claims by rural workers were contested on average once a month; since rural workers filed only 10% of the total claims, this indicates either that rural workers were more contentious than workers in other sectors or that rural employers were more recalcitrant than their urban counterparts.

Almost by definition the small number of claims that were contested likely shared some common features. First, the claimants were represented by lawyers in over 70% of these claims. However, it is surprising that in 30% of the contested claims the claimant proceeded without legal representation. As noted above, and as we will see in Chapter 9, this was possible because the hearings were inquisitorial in nature and because the junta

1965:118 1966:80 1967:72 1968 :data not available 1969:108 1970:75 1971:26 1972:55 1973:57 The figures reveal two anomalies. In 1965 the average number of claims jumped to 118 per month, probably as a result of the doubling of the minimum wage. In 1971 the number dropped to 26, which may reflect the 1970 legislation that required the STR to provide legal assistance and prompted a greater effort to settle claims short of complaining to the junta. 21 Lei No. 5630 de 2 de Dezembro de 1970 248 took carriage of enforcement proceedings. Second, virtually all contested claims were at least partially successful. Third, the same labour rights were claimed repeatedly:

Pay in lieu of notice 75% of contested claims

13th month salary 73% of contested claims

Minimum wage 61 % of contested claims

Vacation pay 60% of contested claims

Severance pay 45% of contested claims

Overtime 31 % of contested claims

Weekly rest day 21 % of contested claims

The claims for pay in lieu of notice, the 13 month salary and vacation pay almost inevitably succeeded because these labour rights were virtually ignored by the region's growers; however, claims for overtime and the paid weekly rest day often failed because the claimant did not meet the relatively high burden of proof that the junta imposed for claims of this nature.22 Claims for the minimum wage and severance pay were the most frequently contested, and with mixed success, and typically involved the core labour rights which are considered in Chapter 10.

The efficiency of the Vieira court can be judged by measuring how long it took for a contested claim to proceed from start to finish. The starting point was the filing of the claim with the secretariat. The clerk assigned the claim a file number and a first appearance date two or three weeks from the date of filing. The secretariat was required to serve the respondent and provide at least five days notice of the hearing; in a case involving service out of the jurisdiction an extra week or two was added on before the

22 JCJ 53. See Appendix A. In this case Antonio Olimpio argued: It is a settled issue in labour jurisprudence that overtime must be proven beyond a shadow of a doubt. 249 first appearance date. Since virtually all claims were disposed of at the first appearance, workers could therefore expect to have their claims adjudicated within two to five weeks of the date of filing.

Adjournments were difficult to obtain and when an adjournment was granted it was only for a period of two or three weeks. The most common reason for adjournment was failure to provide proper notice, an issue to which we will return in Chapter 9. Short adjournments were also available in the event of an illness or a death in the family, of the parties or their lawyers, if the request was made in writing with the proper documentation filed in support. For example, a respondent lawyer obtained a three week adjournment on the basis that his client was too ill to travel from Urucuca to the hearing in Ilheus and proffered a handwritten note from a general medical practitioner which read:

I attest that Senhor Firmino Baracho is under my professional care, it being impossible to travel, due to his state of health.

Of the cases considered in this study, adjournments were granted in less than 20% of the cases and the majority of these adjournments were for lack of notice. If the respondent failed to appear after receiving proper notice, the hearing proceeded in his or her absence. Judge Vieira would complete the hearing of the case in one day and issue his decision forthwith at the end of the hearing; for one case he reserved judgment until the following week.

However, the filing of an appeal was a major cause of delay. Appeals to the regional TRT5 were relatively frequent; among the ninety contested claims, twenty-two involved appeals to the TRT5 and three involved appeals to the national TST. Although most appeals were filed by the respondent, two appeals were filed by the claimant and in four cases both parties appealed. Success on appeal was mixed; although it was not unusual for an appeal to succeed in whole or in part, a successful appeal inevitably left

JCJ 44. See Appendix A 250 part of the judgment intact because very few claims were entirely without merit. The normal time required to process an appeal was four to five months from the date the appeal was filed to the date of a decision by the TRT5. An appeal was to be filed within ten days (later reduced to eight days) from the date of notice of judgment; the file was then sent from the junta secretariat to the office of the procurador who provided the TRT5 with an opinion on the merits of the appeal before it could be heard. After the TRT5 rendered its decision, the file was sent back to the secretariat in Ilheus and on occasion this step caused a delay of several months, presumably as the file sat waiting for attention at the TRT5 in Salvador. An appeal to the national TST would add another year of delay, although this time could be truncated because an appeal to the TST required leave from the President of the TRT5. The filing of an appeal did not formally stay enforcement proceedings but inevitably enforcement was stalled because the file had to be sent to Salvador; to proceed with enforcement was pointless in any event because coercive action could not be deployed until after the appeal was decided, as we will see in Chapter 9.

One of the features of the dissidio individual was that Labour Justice was able to enforce its own judgments. The enforcement procedure was known as execugao (execution). The secretariat took carriage of enforcement proceedings, under the supervision of the junta president, and in most cases the Chefe made every reasonable effort to ensure that a judgment was satisfied, although execugao inevitably led to further delay. A recalcitrant judgment debtor could avoid payment for several months, or even years in an extreme case, despite the seeming relish with which the secretariat approached execugao. As we will see in Chapter 9, execugao involved several procedural steps to protect the property rights of the judgment debtor. As may be inevitably within a form of contention, these and other measures which were intended to provide procedural fairness were used as instruments within a contentious strategy. With respect to execugao, there was no normal pattern of delay; in general, a delay of five or six months was common; a delay of one or two years was not unusual, and a delay of several years was 251 not unknown. However, due to the diligence with which the secretariat approached execugdo, very few judgments ultimately remained unsatisfied.

The dissidio individual incorporated several negative incentives which encouraged a respondent to settle a valid claim. One was that the junta could order payment of twice the amount owed if the judges found the claim to be "incontrovertible," as specified by statute. The purpose of this provision was to allow a worker to pursue more controversial headings of claim without delaying payment of amounts that were beyond dispute and without being unduly pressured to settle. Evidently the determination of which headings of claim were incontrovertible was open to interpretation and in the Vieira court this provision was used creatively to induce settlement of many claims at the conciliation stage. Most conciliated settlements involved a fine that the respondent was required to pay in the event that the settlement was not honoured; the fines were sometimes in the 20% range but often they required payment in double, in recognition of this provision. Claimants frequently collected these fines upon default, pursuant to the execugdo procedures. The other negative incentives involved post-judgment interest at the rate of 6%; after 1966 the amount of a judgment was also adjusted to offset the effects of inflation prior to payment. Finally, unsuccessful respondents were required to pay court costs and judgment debtors to pay the costs of execugdo. Court costs were fixed on a scale according to the actual or estimated value of the judgment but had to be paid within five days of filing an appeal or the appeal was dismissed as a nullity. After 1970 the respondent was required to deposit the full amount of the judgment with the Bank of Brazil before an appeal could proceed to ensure that execugdo would not be delayed in the event the appeal failed. Despite the fact that this money was on deposit, an unsuccessful appellant was required to pay interest and the inflation adjustment on this

The CLT and the ETR, required "incontrovertible" amounts to be paid prior to the first appearance: ETR Article 85; CLT Article 467. 25 Decreto Lei 75 de 21 de Novembro de 1966 26 A statute enacted in 1970 introduced a series of procedural changes: Lei No. 5584 de 26 de Junho de 1970 252 amount to ensure that the claimant was not prejudiced by any delay occasioned by the appeal.

8.3 The judge

This section contains a biographical sketch of the judge who presided over the Ilheusy«Hta from March 1964 to September 1972.

Judge Vieira was born in Salvador on February 7, 1928. He was trained at the law faculty of the Federal University of Bahia (UFBA) in Salvador, from which he graduated in 1953. From 1954 to 1959 he was engaged in the private practice of law in Salvador from time to time while at the same time pursuing steady employment in other fields. In 1955, for example, he moved to Inhambupe, a small town in the Bahian sertdo (the dry hinterland) about 100 kilometers north of Salvador, where he taught Portuguese in a secondary school. In 1956 he returned to Salvador and accepted a posting as Portuguese instructor in a university entrance (pre-vestibular) course operated by UFBA (the Federal University of Bahia). In July 1957 he resumed his legal career to serve as legal advisor for the previdencia system in the retirement benefits division of IAPI28 until 1959. By 1959, therefore, we know that Judge Vieira had been introduced to the culture of the sertdo and that he was familiar with the trabalhista project through his work at IAPI.

Judge Vieira's career as a magistrate began in 1959, when he placed second in the competitive examination for career judges in the State of Bahia. In April 1960 he was appointed district judge (juiz de direito) in the Comarca (Judicial Disrict) of Itapicaru, where he served until August 1963. The location of Itapicaru is of interest because it is, like Inhambupe, in the heart of the Bahian sertdo, near the border of the neighbouring

27 JCJ 54. See Appendix A. 28 IAPI (Instituto de Assistencia e Previdencia Industrial) was the social assistance agency established to administer the previdencia system for industrial workers. When a system of previdencia was formally established for rural workers in 1963 its administration was assigned to IAPI. 253 state of Sergipe, and within a triangular shaped region which supplied many or most of the sertanejo workers to the cacao region, as we saw in section 2.3. It is likely that Judge Vieira became aware of the general plight and character of these sertanejos through his experience in Itapicaru and that he came to understand why the sertanejos left home to work in the cacao region.

Judge Vieira's move from a district judge in the Bahian state judiciary to become a labour judge in the Federal judiciary was to his advantage. The perquisites of judicial office were more bountiful in the Federal system than in the State system. However, a more important consideration may have been the career path that Labour Justice offered within the developmental state. Labour Justice was in a period of expansion, beginning with the Kubitschek government and continuing under President Goulart. The State judicial system was more static, more competitive for judicial aspirants and more conservative; after three years as a district judge in Itapicaru, Vieira would have welcomed the opportunities that Labour Justice offered. In 1963 he entered the competition for career judges in Labour Justice and placed fifth. He was appointed by President Goulart on August 6, 1963 and was sworn in as a labour judge on August 19, 1963. As an entry level labour judge he served as a "substitute" judge for six months until he was sworn in as President of the Ilheus/unto on March 14, 1964. He convened his first hearing on March 30, 1964, the day before President Goulart was overthrown by the military.

Judge Vieira had charisma and soon established himself as an important figure in Ilheus among the urban elite. He taught civil law at the Ilheus law school from 1966 to 1972, and in 1972 he was appointed head of the Department of Public Law (Direito Publico). He was active in social circles and was elected president of the Clube Social de

Diario Official de 6 de Agosto de 1963 30 The Ilheus law faculty (Faculdade de Direito de Ilheus) is now part of the UESC (State University of Santa Cruz). 254 Ilheus.31 In September 1972 he was transferred to Salvador as president of a Labour Justice vara32, a career move which was considered a promotion because of its size and location. In 1977 he was elected as the founding president of the Associacao dos Magistrados da Justica do Trabalho da Quinta Regiao (Association of Labour justice Magistrates of the Fifth Region), a professional association which represented labour judges in Bahia. During these years in Salvador Judge Vieira sat as a supplementary judge on Bahia's regional tribunal, the TRT5 (Tribunal Regional do Trabalho da Quinta Regiao or Regional Labour Tribunal of the 5th Region) until he was finally promoted to the TRT5 as a desembargador (appeal judge) in 1991.33 As a regional judge he was an active member of the Instituto Bahiano de Direito do Trabalho and the Instituto Latino- Americano de Direito do Trabalho. He served on the regional tribunal until April 1994 when he retired due to ill health.

Some comments made by Judge Vieira during his career as a labour judge demonstrated his commitment to labour rights, as we will see in Chapters 9 and 10. Although he sat as a labour judge throughout the military regime, we saw in Chapter 5 that the military's novo trabalhismo policy continued, for the most part, to protect formal labour rights and that Labour Justice was used to extend the authority of the central state vis a vis regional oligarchs such as the coronets do cacau. The continuity that Labour Justice exhibited in the years before, during and after military rule was evident in Bahia at the TRT5 level. The most prominent Bahian jurist to sit on the TRT5 was Carlos Coqueijo Costa whose career reflected this continuity. Judge Costa served as president of

The Ilheus social club was founded in 1927 and continues to function at the time of writing (2009). 32 A vara was a sub-division of a junta 33 Decree of President Collor on April 24, 1991. This biographic information was gleaned from my notes which were taken when Judge Vieira's personnel file was read to me by a clerk at the TRT5. In 2007 I spoke to Judge Vieira briefly by telephone but I was unable to verify any of this information. He was living in quiet retirement in Salvador and declined to be interviewed on the grounds of ill health, which had forced him to retire in 1994. After his retirement he continued to serve in the judicial competition process through the Secretaria de Concursos and he assisted other labour judges by doing legal research. 255 the TRT5 during the Kubitschek government, from 1955 to 1959, and again during the military regime, from 1967 to 1971. In 1971 he was appointed —by a military duro (hard­ liner) General Emilio Medici ~ to the national TST where he served as vice-president from 1983 to 1984 and as president after the return to civilian rule, from 1985 to 1986, before dying while still in office in 1988. It is not surprising, then, that Judge Vieira was able to serve as president of the Whsus junta both before the coup and after the coup, and to then gain appointment to the regional tribunal, without direct interference from the military regime. On the other hand, Judge Vieira's career path may have been hindered by his political views, but that remains a matter for speculation.

From this brief biographical sketch we can conclude that, at the age of thirty-six, Judge Vieira arrived in Ilheus with limited experience as a magistrate but with some life experience gained through his varied legal career. His ranking in two judicial competitions confirms his suitability for a career in the judiciary, his initiatives in social and educational circles in Ilheus indicate the strength of his personality; his activism while on the bench reflects the degree of respect that he enjoyed among his peers. We will see in the remainder of this Chapter that, in his interactions with the Ilheus labour bar and the coronets, he was able to assert the authority of the junta and his personal authority within the region's unique legal culture, despite his position as an outsider to the region. In Chapters 9 and 10 we will see that, through his judicial pronouncements, he showed respect for and understanding of rural workers, including women workers, and that he was prepared, when it seemed appropriate, to prefer the evidence of a rural worker even when it conflicted with that of a coronel.

In making findings of fact, a judge is as much guided by a "background prescriptive theory" as (according to Kennedy) he or she is in filling gaps in the legal rules. In the case of Judge Vieira, his willingness to accept the evidence of a cacao

It was suggested to me in a personal communication from a knowledgeable source that must remain anonymous that his appointment as a "desembargador" was delayed because of his political opinions. 256 worker over that of a coronel was a radical departure from the traditional approach to fact finding in rural Brazil. According to Segadas Viana:

Whoever knows anything about rural Brazil knows very well that when dealing with an oral agreement the version that matters is that of the stronger party to the agreement, the fazendeiro.

Judge Vieira's biography and the record,of his judicial pronouncements indicate that he was committed to the rule of law as Kennedy defined it. The remainder of this chapter and the chapters which follow will show the extent to which Judge Vieira was able to put the rule of law into practice within the juridical field over which he presided, that is, the extent to which he resisted the influence of the regional elite, protected labour rights, and provided coherent interpretations of the relevant legal texts.

8.4 The Ilheus bar

In Chapter 2 we saw that every coronel sought to have a lawyer (bacharel) in his family, which allowed the bachareis of Ilheus to occupy a position of social privilege. Some members of the local bar, often the sons of large landowners, acted only for respondents in labour cases while the lawyers who were known to act mainly for claimants were prepared to act also for a respondent when the occasion arose. The lawyers who appeared regularly before the Vieira court were from Ilheus but it was not unusual to see a lawyer from Itabuna, Urucuca, Coaraci or Itajuipe, appearing for either a claimant or a respondent.

Antonio Olimpio Rhem da Silva (known as Antonio Olimpio) was the dean of the Ilheus labour bar. He acted for claimants in 80% of his labour cases and for respondents

36 Segadas Vianna, O Estauto do Trabalhador Rural e sua Aplica cao (Comentarios a lei no. 4,214 de 2 de Marco de 1963) (Sao Paulo: Livraria Freitas Bastos S.A., 1965), page 58. The original in Portuguese reads: Ora, quern conhece nosso interior sabe bem que, nas partes de um contrato verbal, a palavra que vale e do fazendeiro, o mais forte. 37 Unless otherwise indicated, the information about Antonio Olimpio is taken from an informal interview I conducted with him. I sought a formal interview but he preferred an informal conversation. We met in his 257 in 20%, although he practiced in other fields of law besides labour. In an interview Antonio Olimpio recounted that he was sometimes retained by an employer who saw him acting for a claimant in a previous case, and that his approach with employer clients was to instruct them on how to comply with their legal obligations, including how to keep proper payroll records. His reputation earned him a steady stream of referrals from the Urucuca STR, although he had no direct contact with the Ilheus /Itabuna STR. Church activists in the region who worked to promote the labour rights of cacao workers held Antonio Olimpio in high regard and also referred clients to him. His reputation, his personal history and his performance in the Vieira court suggest that Antonio Olimpio was a lawyer with credentials as a trabalhista who shared Judge Vieira's vision of the rule of law.

Antonio Olimpio was born in 1931 in Ferradas, the son of a coronel (Antonio Olimpio da Silva) from Porto Seguro and a coronet's daughter, a descendant of the Rhem family which came to the region from Bonfim in the Bahian sertao. Antonio Olimpio studied law in Rio de Janeiro, where he joined the PTB and the staff of the Ministry of Labour after graduation. In 1962 the Ministry assigned him as a. fiscal (inspector) to head up the Ministry's sub-region (sub-delegacao) in Ilheus and at the same time he was supposed to rejuvenate the local branch of the PTB. While working as a fiscal he established a practice in labour law in association with Paulo Cardoso Pinto and later his brother Nilo Cardoso Pinto da Silva (Judge Vieira's suplente or supplementary judge). In 1966 new legislation required public servants to abandon their private pursuits or leave the public service so he took on a full time private practice and partnered with Accioli da Cruz Moreira who later became a criminal prosecutor. Antonio Olimpio and Judge Vieira were both colleagues and friends: they taught together at the Ilheus law faculty, and they

home in Pontal (Ilheus) on 9 February 2007 and my colleague from CEDOC/UESC, Alvaro Souza Neto, took notes. During the military regime, Antonio Olimpio identified politically with the opposition MDB party. One could speculate that the Renovador leadership of the Ilheus STR did not refer him clients because they supported the military regime. In my interview with Antonio Dias, he confirmed that Antonio Olimpio enjoyed a positive reputation among church activists and they also referred cases to him. 258 socialized together on weekends. When Antonio Olimpio's father died in 1965, Judge Vieira adjourned proceedings at the junta to attend the funeral.

Another Ilheus lawyer, Tandick Resende de Moraes, had a more direct association with the cause of rural workers. Resende was a former Catholic priest who was known in legal circles both for his fluency in Latin and his frequent missteps. Resende manoeuvered awkwardly in the juridical field and on one occasion earned the wrath of Judge Vieira. In 1965, a lawyer named Luiz Perdreiro Fernandes appeared on behalf of a cacao worker who had been terminated and when the respondent failed to appear Judge Vieira proceeded in his absence, made an award in favour of the claimant, and — acting ex officio as President of the junta — sent the file for execution. The respondent then petitioned the court informally to suspend the execution process because he had already reached a settlement with Resende, who purported to act on the claimant's behalf, in which he agreed to make payment directly to Resende rather than to the claimant. Resende signed the petition to indicate his consent.

Judge Vieira denied the petition and issued Resende with a sharp rebuke for committing three procedural irregularities. First, Resende had no standing to represent the claimant because he was not counsel of record, and the practice was to file a formal retainer unless the client was physically present before the court. Second, once enforcement procedures were commenced, payments were to be made through the junta secretariat rather than directly to the claimant or the lawyer, perhaps as much to ensure that court costs were satisfied as to protect the claimant. Third, the junta President had carriage of execution proceedings so any agreement between the parties was subject to his prior approval. Judge Vieira instructed the secretariat to order the parties — that is, not Resende — to attend personally before him, and when they appeared a month later ~ with Resende in attendance — Judge Vieira approved the settlement. In this way Judge Vieira asserted his authority vis a vis the labour bar and ensured that the regional legal culture did not undermine the junta's effort to protect labour rights.

259 Judge Vieira dealt effectively with Resende's error and may have concluded that he was acting in good faith, but in an instance involving a management lawyer the judge

TO could do little more than express his displeasure at the disrespect shown to the court. The lawyer involved was Jose Almiro Gomes who was acting for the estate of Clarindo Teixeira, a coronel from the Municipality of Itajuipe. Clarindo appears to have been a decent employer but after his death the fazenda administrador fired a worker who had complained about his wages.

The estate had been left to five heirs who mistrusted both Gomes and each other. Since the workers' claim was filed against the estate and each of the heirs, the secretariat sent six copies of the notice of hearing to Gomes on June 18, the same day that the claim was filed, with a hearing date set for July 7. Gomes sat on the documents until June 30, when he sent Judge Vieira a handwritten letter in which he acknowledged receipt of the documents for "educational purposes" (por educagao) but regretted that he could not forward the documents to the heirs...

...given that these people are very suspicious and would conclude that the undersigned was doing the bidding of their adversary.

Judge Vieira was provoked by Gomes's inaction and because his disregard for the junta's process forced an adjournment of the hearing. He wrote a rather sarcastic memo to file and forwarded a copy to Gomes:

It is regrettable that the "noble lawyer", who, "for educational purposes", received on the 18th of June the notices destined for the respondents, only now [responded]... Before this "noble lawyer" it is submitted that he should be less preoccupied with "education" and demonstrate more interest in serving Justice — since he is a lawyer — to facilitate and not make more difficult its carrying out. He was not obliged to receive them and if—for educational purposes— he did receive them, he ought to have returned the notices with haste.

JCJ 37. See Appendix A 260 Gomes appeared at the hearing as counsel for the estate and the matter was settled during the course of the hearing, after Judge Vieira had heard the evidence, although the record does not indicate the terms of the settlement or how it came about.

In another instance, one of the region's bachareis directly challenged the junta's authority and Judge Vieira's ability. We saw in Chapter 2 that the regional legal culture was based on a special relation between the coronets and the region's bachareis, many of whom were joined to the coronets in a family relation. Amilton Ignacio de Castro was an example of one such bacharel as he was born into the Castro family from the region's gentry class. Castro acted for Jose Carlos de Sa Adami, the patriarch of one of the branches of the Sa family, and in an appeal filed at the TRT5 (the regional tribunal) on behalf of Jose Carlos he pleaded:

... the claim referred to is one of those constants in the current rural life, after the coming of the statute approved by Lei 4.214 of March 2, 1963 [i.e. the ETR]. The anxiousness to promote litigation, to involve rural landowners in labour conflicts, has determined that Justice is preoccupied with claims that are altogether unjust and tend to create a climate of agitation and unrest in the rustic labour world.39

In this pleading Castro showed a patronizing attitude towards the junta that was likely shared by his client and was not uncommon among other members of the regional elite. He went on, however, to show that his concern was with the approach of Judge Vieira as well as with the institution and the legislation. Judge Vieira had ordered Jose Carlos to pay overtime, based on the evidence of the rural worker, to which Castro, without evidentiary support, pleaded in response:

Only someone who is completely ignorant about rural activity, about growing cacao, would give credence to such information.

JCJ 77. See Appendix A 261 The phrase "someone who is completely ignorant..." referred directly to Judge Vieira, who at the time of the claim (December 1965) had been in the region for less than two years and would likely have based his decision on the evidence rather than on any personal knowledge. This willingness to accept the evidence of a rural worker and to resist the undue influence of the coronets was characteristic of Judge Vieira. The regional elite touted the eight hour day and the five day week as the regional norm, while the junta records indicate that the practice varied from one fazenda to another; the records also reveal that Castro's client was non- compliant with the ETR norms on these and other grounds, as we will see in section 8.5 and later in Chapter 10.

8.5 The junta and the coroneis

The lawyer Amilton Ignacio de Castro disrespected the junta and its judge. We next see that his client defied the judge's authority. Jose Carlos de Sa Adami was the patriarch of the gentry family which was featured in section 2.3 and the owner of several fazendas in the District of Castelo Novo, the fluvial port on the Rio Almada; three of these fazendas were run as a conjunto (joint enterprise): Fazenda Castelo Novo, Fazenda Passagem and Fazenda Santo Antonio.

Jose Carlos was among the first of the coroneis to be named as a respondent in the Vieira court, in a case involving the termination of two rural workers at the Fazenda Castelo Novo, Jorge Celestino Barreto and Epaminondas da Silva. The workers, Jorge and Epaminondas, were paid in chits {vales) rather than cash, and these chits were redeemable only at the fazenda store (barracao), at a rate considerably below the regional minimum wage. Within a few months of being hired, they complained to the administrador about this manner of payment and were fired immediately. Their case was

262 taken on by Antonio Olimpio (the lawyer) who filed a claim on their behalf on October 27,1964.40

Jose Carlos lived with his family in Salvador, but since he kept an office in Ilheus Antonio Olimpio proposed he be served at his Ilheus office. The junta clerk made an initial unsuccessful attempt at service; on the second attempt, when Jose Carlos appeared to be avoiding service, he left the notice of hearing in the hands of an office worker, which Judge Vieira deemed to be sufficient service. When Jose Carlos failed to appear to defend the claim, Judge Vieira proceed in his absence and awarded compensation to the claimants for notice of termination, the 13th month, back wages, and a top up to the minimum wage, retroactive to the date of hire. The judge ordered the back wages to be paid in double because they were "incontrovertible" (see section 8.2). The measured approach of Judge Vieira to the "incontrovertible" rule is evidenced by the fact that he applied it to the back pay and not to payment of the minimum wage, perhaps because the truck system that Jose Carlos was operating was "controvertible" since it had not previously been challenged. We will return to the issue of the truck system in Chapter 10.

When Jose Carlos was served with notice of the judgment against him he retained Castro to file an appeal. Perhaps because the junta was new to Ilheus and he was somewhat unfamiliar with the rules of Labour Justice, Castro missed the limitation period and the appeal was dismissed as untimely. Castro's argument was interesting because he invoked the regional legal culture to argue that had Jose Carlos known about the claim against him he would have contested it, given his contentious character:

An element, even strong element, of his character was to fight to vindicate his rights wherever they are at issue or under discussion or at least in danger.

40 JCJ 30. See Appendix A 41 The original in Portuguese reads: 263 After his appeal to the TRT5 was dismissed, Jose Carlos continued to defy the junta, causing Judge Vieira to initiate enforcement proceedings. When served with a "writ of summons" {mandado de citagad), Jose Carlos sent Castro to plead that he was besieged by creditors but would pay in five monthly installments, even though the amount of money involved was only sixty-six days pay for each claimant at the regional minimum wage. The suggestion that Jose Carlos required this amount of time was absurd, but the time required for execution would have been even longer. Judge Vieira had little choice but to agree and the judgment was eventually satisfied.

This first interaction between Judge Vieira and Jose Carlos may have been unpleasant from the judge's perspective, but he could draw some satisfaction from the fact that the judgment was eventually paid. On the other hand, Jose Carlos may have drawn some satisfaction from the fact that the claimants had already left the region and Jorge did not return to collect his money until 1975 when, because of inflation, it was worth only seven days pay. Epaminondas and Jorge were no longer companheiros (spouses) and Epaminondas never collected what she was owed.

We learn from this interaction that a respondent could cause considerable delay and inconvenience but that Judge Vieira and the secretariat had the means available and the determination required to execute the court's judgments. We also learn that delay was to the detriment of claimants whose earnings were eroded by inflation and who migrated from region to region in search of work. Whether they stayed in the region or left to work elsewhere, rural workers required determination to pursue a claim in Labour Justice against a contentious respondent such as Jose Carlos.

Um traco, ate muito forte de seu character e de lutar pela revelacao e realizacao do seu direito, onde quer que se litigue ou se discute, ao menos, sua periclitacao .

264 A second interaction between Judge Vieira and Jose Carlos began in December 1965, and in this case [JCJ 77, referred to in section 8.4] Jose Carlos confirmed his contentious character. Antonio Souza de Santos was hired in March 1963 to work at the Fazenda Passagem but he was housed four kilometers away at the Fazenda Santo Antonio. Like Epaminondas and Jorge, Antonio Souza was victimized by the truck system and was paid less than the minimum wage, which led him to quit when he found himself constantly in debt at the end of the month. The fact that Antonio Souza was at liberty to quit despite his debt and that he was then able to file a claim in the junta indicates that by 1965 there were no jagungos -- hired guns, as we saw in Chapter 2 — in Castelo Novo that Jose Carlos could call on to enforce debt bondage.

The lawyer Resende filed a claim on behalf of Antonio Souza and again proposed that Jose Carlos be served at his office in Ilheus. Perhaps leery because of the grounds for appeal advanced in their previous interaction, Judge Vieira opted for personal service at Jose Carlos's residence in Salvador. The first appearance was adjourned twice for lack of service, and on the second occasion the judge was advised that Jose Carlos was in Ilheus. Again the secretariat left the documents at his Ilheus office and again the judge proceeded in his absence when Jose Carlos did not appear. By then, however, Antonio Souza had switched lawyers and retained Accioli Moreira from the law office of Antonio Olimpio.

In section 8.4 we saw that the lawyer Castro challenged Judge Vieira's finding that the Antonio Souza was entitled to overtime pay. We know from section 4.5 that, as a result of a campaign conducted by the Ilheus/Pirangi STR, many coronets implemented the eight hour day during the New Republic, and we know from section 6.4 that the coronets implemented a five day week after 1949 to avoid paying the weekly rest day. Castro pleaded that the eight hour day and the five day week were part of the lei do cacau, but all of the evidence heard by Judge Vieira indicated that Antonio Souza worked eight and a half hours per day, six days a week. This work schedule was not universal in the region but it was not uncommon. Whether this evidence was true in this case, Jose

265 Carlos lost the opportunity to contest the evidence when he failed to appear to defend the claim, and after working for Jose Carlos for less than three years Antonio Souza was awarded the equivalent to 581 days pay at the regional minimum wage. Castro attempted to re-litigate the issues at the TRT5 but he was prevented from raising issues of fact that should have been raised at the junta level; payroll records that bore the claimant's fingerprint as evidence he had been paid the minimum wage were deemed inadmissible in an appeal.

The problem of serving Jose Carlos with the initial caused a ten week delay but this was insignificant compared to the delay caused by the appeal process and later by the enforcement process.42 The appeal process took thirty-four months because the secretariat was required to send the file to the office of the Procurador Regional (regional procurator) in Salvador who was expected to file an opinion on the merits of the appeal before it was heard by the TRT5. The execution process was not formally stayed by the filing of an appeal but as a practical matter the secretariat waited until the file was returned to the junta before initiating execution after the appeal was heard.43 Although the appeal was heard within four months of the date of the initial judgment, the file sat dormant for a further twenty-nine months, likely because the TRT5 secretariat in Salvador failed to return the file to the junta secretariat in Ilheus.

Once Judge Vieira took carriage of the execution process he was diligent in coercing payment from Jose Carlos, who initially chose to ignore the enforcement proceedings. In March 1969 Judge Vieira instructed the secretariat to seize a parcel of land which Jose Carlos owned in the District of Aritagua, on the outskirts of the city. The procedure for the junta to seize land was similar to the procedure used by the coroneis — including the Sa family — and their bachareis to seize the land of judgment debtors during the process of "primitive accumulation" (see Chapter 2). The clerk attended both

42 The appeal was filed in February 1966 and the TRT5 decision was issued four months later on June 16, 1966. The junta did not commence enforcement proceedings until December 3, 1968. 43 CLT, Article 899 266 at Jose Carlos's residence in Ilheus and at his office in Ilheus on several occasions to serve a Notice of Penhora (attachment for sale), which required personal service, but was told on each occasion that Jose Carlos was not available. By chance he spotted Jose Carlos in the street, at the entrance to the ICB {Institute de Cacau de Bahia), where Jose Carlos was an executive member.44 When the clerk approached him, Jose Carlos refused to accept a copy of the notice. When he returned to the junta office, the clerk wrote a report to Judge Vieira in which he complained that he was unable to serve the notice

...in view of the fact that he [Jose Carlos], in an attitude of incivility and disrespect to me personally, as well as to the Junta, put an end to any possibility of dialogue.45

Judge Vieira was unfazed by this act of disrespect and proceeded to retain the official bailiff as the legal depositor (depositdrio) of the parcel of land. He then requested the district judge (juiz de direito) to authorize a charge to be registered against title at the registry office {Registro de Imoveis e Hipotecas) where a member of the Lavigne family - - Antonio Francisco Leal Lavigne de Lemos — served as official registrar. 46 The charge was registered and on August 1, 1969, Jose Carlos was served with notice of a judicial sale. On August 18 he approached the secretariat to offer payment but the Chefe sent him first to pay the costs of the official bailiff and the registry office. In addition to these costs and the amount of the judgment, he was required to pay court costs for the execution proceedings, post-judgment interest at the rate of 6%, and an inflation adjustment (correcao monetaria) at the ratio of 1.568 (156.8% of the judgment amount). The judgment was finally satisfied in August 1969 and Antonio Souza received a payment which was worth 196 days pay at the prevailing regional minimum wage, four years after he quit.

44 The ICB is discussed in section 3.3. 45 JCJ 77. See Appendix A . The original in Portuguese reads: Tendo em visto que o mesmo, em attitude de desurbanidade e de desrespeito a pessoa do certificante, bem como Junta, pos embargo a qualquer possibilidade de dialogo. 45 The office of the official depositor and the registry office were created by the Bahian state legislation which regulates the administration of justice: Lei 175 de 2 de Julho de 1949 (Bahia) 267 We learn from this second interaction between the junta and Jose Carlos that the delays in the appeal process were caused as much by administrative inefficiency as by the contentiousness of the respondents. The time period between the filing of the appeal and a decision by the TRT5 (four months) was considerably less than the time during which the file sat dormant (twenty-nine months). Since the regional tribunals enjoyed administrative autonomy, the file management system of the TRT5 bears the ultimate responsibility for this delay. In terms of the relation between the junta and the coronets, we learn that the execution process involved contention between the junta and Jose Carlos because Judge Vieira was determined that the judgment would be satisfied. Within the contentious repertoire of the junta, Judge Vieira discovered that the penhora (attachment for sale) of land was the most effective form of contention that the junta had available.

As for the coronets, Jose Carlos was forced to acknowledge the authority of the junta when his land was threatened and he learned that it was in his interest to contest a claim in the first instance because his rights on appeal were limited. As for the notion of cumplimiento normativo, despite his social position as an executive member of the ICB and the scion of an elite family, Jose Carlos disrespected the labour rights of his workers in defiance of his legal obligation to the contrary. It appears that cumplimiento coercitivo was required.

8.6 The junta and the regional legal culture

In this interactional approach to the Vieira court we have so far considered elite relations among the judge, the labour bar and the coronets. In this section the discussion moves to a more abstract level to consider the relation between the Vieira court and the regional legal culture that was identified in section 2.4.

Judge Vieira and Antonio Olimpio shared a concern that the negative aspects of the regional legal culture not infiltrate the junta when respondent lawyers sought to 268 introduce the techniques of caxixe into the dissidio individual. In this section we will consider a case in which a coronel of novo rico origins attempted unsuccessfully to rely on such techniques in the Vieira court.

Firmino Gomes Baracho was the owner of the Fazenda Bonfim da Ribeira in Urucuca where Reinaldo Bispo de Melo47 worked from August 2, 1962 until May 23, 1964. Reinaldo was paid at the rate of Cr $ 400 per day and when the regional minimum wage was doubled in February 1964 to Cr $ 840, he approached Baracho and asked for a raise; Baracho responded by firing him on the spot. When Antonio Olimpio filed a claim on behalf of Reinaldo, Baracho retained a family member, Eraldo Sequeiro Gomes, to respond on his behalf. As the case unfolded, Antonio Olimpio convinced Judge Vieira and the TRT5 judges that the technique Gomes relied on in defending the claim so much resembled caxixe that it should be disavowed.

Most cases were disposed of at the first appearance, which meant that in the normal course of events the claimant's lawyer had no inkling of what the defense to the claim would be until the respondent lawyer gave a contestacao (opening statement). In this case Gomes produced a document entitled Recibo de Quitacao Geral (Receipt of General Release) which was in a printed format authorized by the CLT. The purpose of a quitacao was to prove that an employment contract had been rescinded and that the worker had received payment in full for all of his labour rights. The document listed the labour rights in question and the amount allocated to each right. In this case the total payment indicated was Cr $ 116,600, allocated as follows:

13th month salary = 29,000

Pay in lieu of notice = 25,200

Severance pay = 50,400

JCJ 44. See Appendix A 269 Vacation pay (1963) = 12,000

An additional allocation was written in at the top of the quitagao form for "salary top-up = 20,000". The form bore the signatures of "Renaldo [sic] Bispo" and of two witnesses, as well as the following endorsement:

Visto [seen or approved]

Afranio Amorim [signature]

Juiz de Paz [Justice of the Peace]

In the lei do cacau this quitagao may have resulted in a successful caxixe, but in the Vieira court Antonio Olimpio successfully challenged the authority and the authenticity of the document. Baracho asserted that he was present when the document was signed and authenticated but Reinaldo contradicted him and stated that the signature on the quitagao was not his. To corroborate this evidence, Antonio Olimpio pointed to the initial (statement of claim) which Reinaldo had signed as "Reinaldo Bispo de Melo" with a handwriting that was clearly different from that of the signature on the quitagao. This evidence may have been sufficient to impugn the quitagao except that there remained the problem that the document was authenticated by a Justice of the Peace, a judicial officer whose authority could not be lightly dismissed.

In order to invalidate the authentication by the Justice of the Peace, Antonio Olimpio relied on a 1962 statute which provided that a quitagao was valid only if authenticated by the Ministry of Labour, Labour Justice, or the appropriate union (o respetivo sindicato).49 Gomes relied on an exception to this rule that applied when none of these three apparatuses were available: a quitagao could be authenticated by a Justice of the Peace or by the local police.

48 The office of Justice of the Peace can be traced back to the "liberal decade" (1827-18937) in the post- independence era. By the time of the case study it had evolved and was concerned with the administration of justice under the Bahian state legislation cited in fn 46 above. 49 Lei 4066 de 28 de Maio 1962. This was modified by Lei No. 5.584 de 26 de Junho de 1970. 270 The case turned on whether or not the Urucuca STR was an "appropriate union" within the meaning of the statute. Antonio Olimpio argued that the existence of the Urucuca STR was a matter of public knowledge and that the union had been recognized by the Ministry of Labour, to which Baracho responded that he was aware of the union's existence but that the union was not recognized by the Ministry of Labour. We know from Chapter 4 that the Urucuca union was founded by the Ilheus Renovadores in May 1963 and that it was not recognized by the Ministry until November 1965, more than a year after Reinaldo was fired. However, we also know from Chapter 4 that recognition under the ETR was retroactive to the date of application, lending coherence to the argument that the Urucuca STR was an "appropriate union" within the meaning of the 1962 statute.50

Judge Vieira relied on the 1962 statute to rule in Reinaldo's favour, and in addition he expressed doubts about the authenticity of the quitagao because the signatures on the quitagao and on the initial were obviously different "even to an observer without the eyes of an expert." Out of deference to the office of the Justice of the Peace, Judge Vieira avoided making a finding of fraud, observing that Afranio Amorim was advanced in years and signed with a trembling hand. This ruling caused considerable concern within the regional elite because it challenged the viability of the region's legal culture, at least within this particular juridical field.

Recognizing the implications of Judge Vieira's ruling, Eucario Souza Bastos, the vogal representing employers, was moved to issue a written dissent, marking the first dissent by a vogal in the Vieira court.51 Bastos defended the besmirched reputation of the Justice of the Peace, whom he described as a man whose "notorious moral integrity" was

50 ETR Article 121. According to the union's letterhead, it was founded on May 19, 1963 and recognized by the Ministry of Labour on November 30, 1965. 51 Bastos was a lawyer who acted for local employers before his appointment as their vogal. Unlike his union-side counter-part, Felisbelo Gomes dos Santos, who was known for his even handed approach, Bastos was known for his partisan defence of employer interests. Personal communication from Antonio Olimpio. 271 acknowledged both in Urucuca and in the neighbouring municipalities. As one of the region's bachareis, Bastos was able to mount a coherent legal argument in his dissent, based on the onus of proof and the status of the Urucuca STR. In addition, he invoked a Bahian statute that regulated the administration of civil law and deemed a settlement witnessed by a Justice of the Peace to be final and binding. By invoking a Bahian statute from the field of civil law, Bastos raised a question of interlegality: under what circumstances could law from another field intrude into the field of Labour Justice? While in this case the issue was avoided, we will see in Chapters 9 and 10 that such intrusions were relatively frequent.

Gomes appealed Judge Vieira's decision to the TRT5. In his pleadings Gomes, reflecting the dislike of the employer community, launched a personal attack on Judge Vieira whose approach, he wrote, was "tending to transform the local court into a focal point for wild and pretentious ambitions outside the margins of the law." Antonio Olimpio responded with equal venom and directed his attack both towards Baracho, whom he accused of "trickery" (embuste), and towards Gomes whom he accused of attacking the judge rather than the decision. Antonio Olimpio argued that the forging of Reinaldo's signature was a flagrant caxixe technique of the type that was formerly a central feature of the regional legal culture.

The TRT5 had little difficulty supporting Judge Vieira's decision that the 1962 statute applied and sent the file back to Ilheus for execution. In this case the appeal decision was rendered in January 1965, four months after the appeal was filed, and the execution process began in May 1965, four months later, representing more or less the average length of time for an appeal. The judgment was satisfied in November 1965.

Lei 175 de 2 de Mho 1949 (Bahia) Antonio Olimpio described this tactic as "condenavel" (condemnable) and "desprezivel" (despicable). 272 8.7 The junta and the rural unions

In Chapter 4 we saw that the campaign for agrarian reform was successful to the extent that the ETR was enacted in 1963 and the system of Labour Justice was expanded to hear the claims of rural workers. After the political regime changed in 1964, Operacao Limpeza (Operation Cleanup) brought the agrarian social movement to a halt and the military's agrarian policy transformed rural unions from agents of contention into state apparatuses. The leadership of Ilheus STR and the Bahian federation were complicit in this transformation. Even though the ETR and Labour Justice remained intact, rural unions in the region virtually ignored the dissidio individual as a form of contention, as evidenced by the virtual absence of any evidence of union activity in the archives of the Vieira court. The Vieira court proved to be a more consistent protector of the labour rights than were the region's rural unions.

The case of Rosel Antonio da Silva shows that the Vieira court was prepared to reject a settlement authorized by the "appropriate union" if the union failed to protect labour rights according to the rule of law. Rosel was employed by a branch of the Sa family that was led by a family member who was even less reputable than Jose Carlos, Osmar Correa de Sa, who was the administrator of the estate of his deceased parents, Joao Augusto de Sa Bittencourt Camara and Alice Correa de Sa. The heirs, Osmar and his distrustful siblings, operated the estate as a condominio (condominium) until it could be divided into separate parcels. The condominio consisted of six fazendas in the District of Castelo Novo, with its headquarters at the Fazenda Bom Sucesso.

Osmar lived with his family in a beach property on the outskirts of Ilheus. When his father died in 1960, rather than manage the condominio himself, he hired Rosel as a gerente (manager) Rosel referred to himself as an "employee with responsibility" (empregado de responsibilida.de) rather than administrador, although he had power to

JCJ 53. See Appendix A 273 hire and fire, to assign work on a day to day basis and, under Osmar's supervision, to manage the payroll. When asked if he could read and write he replied that "I manage to read a bit and I know how to sign my name".55

Rosel managed the condominio without incident from March 1961 until June 1963 when a conflict arose over eight donkeys that Osmar alleged were missing from the Fazenda Bom Sucesso where Rosel resided. Osmar accused Rosel of having stolen the donkeys and, after checking the payroll records, he also accused him of having phantom workers on the payroll. Rather than impose discipline, Osmar changed the form of labour control used on the condominio, switching the workers from diaristas to empreiteiros (see section 2.6) so they could work without supervision and be paid only for what they produced. Osmar fixed the empreito rate unilaterally at Cr $ 200 for each box of cacau mole (moist cacao seeds) delivered to the drying shed. Apparently the workers were displeased with this arrangement and in August 1983 Osmar was informed that the condominio was in a state of crisis because the workers were on strike. Some of the workers had apparently quit and gone to work for Petrobras56 while others were staging a sit-in at Bom Sucesso. Someone ~ either Rosel or Osmar, depending on which version of events is to be believed — requested the Ilheus/Itabuna STR to send a representative to Castelo Novo to resolve the strike.

Osmar traveled from Ilheus to Castelo Novo on August 4, 1963, the peak of the harvest season. When he arrived at the Fazenda Bom Successo, the gates were locked, the

55 The original in Portuguese reads: ... aranjo um pouco a leitura e escrever o nome.

56 In 1963 Petrobras, the state oil company, was used by the developmental nationalists as a source of alternative employment for rural workers in the Northeast. Petrobras was active in the District of Castelo Novo, searching for oil and precious metals. One of the lawyers in the case explained:

... the time when the Goulart government was about to have its lights extinguished was a time that Petrobras was considered a place where it was easy to find a job.

274 ripe cacao pods were rotting in the fields, cacao seeds were rotting on the drying sheds, and Rosel was nowhere in sight. In order to save the crop, Osmar approached the striking workers and offered to double the empreito rate to Cr $ 400 but the workers would not return to work until the union representative arrived. Osmar responded angrily and shouted "go to Petrobras" (va para o Petrobras) but the workers refused to leave until their labour rights were satisfied.

Immediately across from the gates to Bom Sucesso, at a distance of about 200 meters, was the office and residence of the local police "sub-delegate", Antonio Oliveira en Araujo, who was known as someone capable of keeping order. In a sworn statement, Araujo explained that he was aware of the strike because from his doorstep he could see Rosel conduct a pay parade each Saturday morning. In his view the workers were generally content with their wages and the strike was without motive {Era um especie de greve, porem sem motivo). He had noticed earlier that week that production had come to a halt and that the workers were very agitated (bastante exaltados) about something, Rosel more so than the others. Araujo was prepared to assist Osmar, although the official police role was limited by the 1962 statute which required the union to settle accounts with the striking workers. His contribution was to isolate an individual worker and bully him into breaking the strike and identifying Rosel as its instigator. The next day the worker defied this grower-police alliance and re-joined the strike.

Araujo and Osmar teamed up with Osmar's last remaining homem de confianga to break the strike but this effort was of no avail. The stand-off continued until August 15 when Jose Claudino e Silva, a representative of the Ilheus/Itabuna STR, finally arrived from Itabuna. Jose Claudino came equipped with a set of blank receipts on the union's letterhead and with the obvious intention of settling accounts rather than negotiating a return to work. The union's receipts provided less detail than the quitacao document

57 An unidentified informant in the village advised me that Araujo: ... botou ordem, era bem moreno. This indicates that Araujo was black (dark skinned) and that he kept order. 275 referred to in section 8.6; although the receipts itemized the specific labour rights that were being settled, they showed only a total payment and did not allocated a specific

CO amount to each item.

According to Araujo, the workers accepted that they were terminated because of "the big mistake that they had made"5 by participating in the strike action. Jose Claudino set up shop in Osmar's house on the Fazenda Bom Sucesso, in the presence of Osmar and Araujo, to settle their accounts. According to the union receipt, several payments were made that day in amounts ranging from Cr $ 1,700 to Cr $ 18,500, except for Rosel who signed a receipt for Cr $ 321,000. This was an extraordinary amount because it represented 600 days pay at the regional minimum wage, a payment out of proportion to any claim for labour rights that Rosel could advance. The dubious nature of this payment was enhanced by the wording of the receipt, which was distinctly different from the union's standard wording:

I received from Senhor Osmar Correa de Sa the above amount of Cr $ three hundred twenty-one thousand in reference to services rendered at his agricultural property called Fazenda Bom Sucesso in the District of Castelo Novo in the Municipality of Ilheus; I give an irrevocable release before the witnesses present, thus from today forward being without any rights to make a labour claim.60

Anomalously, the receipt was witnessed by Araujo for the police and Jose Claudino for the union.

The practice under the CLT was to allocate an amount for each labour right but this requirement was not legislated until 1970: Lei No. 5.584 de 26 de Junho de 1970. See CLT Article 477. 59 The original in Portuguese reads: ... grande erro que todos cometeram. 60 The original in Portuguese reads: Recibi do Senhor Osmar Correa de Sa a importancia supra de trezentos e vinte un mil, Referente aos meus servicos prestados em sua propriedade agricola denominado Faz. Bom Sucesso no Distrito de Castelo Novo Municipio de Ilheus. Que dou por quitacao irrevogavel perante as testimunhas presentes, ficando assim de hoje em diante sem direitos a reclamacao trabalhista.

276 What was the payment for? ' Rosel testified that he was coerced into signing the receipt without reading it and instead of a cash payment he received only a promise from Osmar that he would be paid Cr $ 300,000 at a later date. If this were true, why would the union allow itself to be made a party to this procedure?

The mystery continued two days later when Rosel fled Bom Sucesso after dark through the back gate and down the river bank where he borrowed a canoe to paddle to Ilheus. He may have waited these two days in anticipation of receiving his Cr $ 300,000, but why did he sneak away during the night? He may have been afraid for his safety because later events suggested that Osmar was prone to violence; according to an account in a local newspaper, Osmar shot a stranger whom he suspected of stealing a coconut, and his nephew was quoted as saying:

He is known as a very violent man prone to fighting and brawling.. .62

After Rosel escaped to Ilheus, he waited a year — again for reasons unknown — before filing a claim at the junta. Resende was his lawyer and the hearing took place on January 11, 1965 before Nilo Cardoso Pinto da Silva, the suplente judge. Antonio Olimpio had no qualms about representing a respondent when retained to do so and in this case he appeared on behalf of Osmar.

Resende's initial (statement of claim) based the claim on Rosel's termination and made no mention of the signed receipt, which he likely learned about for the first time at the hearing. In his contestagao (opening statement) Antonio Olimpio put Resende on the defensive by claiming that Rosel had abandoned his employment the night he fled Bom Sucesso by canoe and he claimed that Rosel owed Osmar thirty days pay for his failure to

61 An unidentified local informant thought that Rosel may have been in cahoots with Osmar's siblings over the settlement of the estate. 62 Diario da Tarde. The original in Portuguese reads: E conhecido como um homem muito violente e afeito a brigas e arnicas... Osmar was arrested and charged with attempted murder but later released; he was referred to in the press as "demonic". 277 give notice. Resende's case ~ that Rosel had been terminated ~ was framed around Osmar's statement "go to Petrobras;" however, Rosel was not present when the statement was made so this statement could not be interpreted as terminating Rosel's employment. Rosel denied any involvement in the strike but the judge found he "disturbed the social harmony of the group of fazendas that he administered by leading a strike." Although a more coherent interpretation would be that the employment relation was ended when Rosel signed the receipt, the judge ruled that Rosel had abandoned his job without notice and he therefore owed his employer thirty days pay in lieu of notice as Antonio Olimpio argued. Resende seemed unprepared to meet this argument and Rosel offered no explanation as to why he took flight. Rosel had other labour rights, however, and the judge ordered Osmar to pay vacation pay, the 13th month, overtime, and a top-up to the minimum wage.

There remained the issue of the union's receipt that Rosel had signed for the enormous amount of Cr $ 321,000. Finding himself on the opposite side of a caxixe issue, Antonio Olimpio was as vehement in defending Osmar's reputation as he had been in attacking Baracho's reputation in the case referred to in section 8.6. He presented Osmar as the "illustrious employer of the claimant"64 who had been victimized by his duplicitous employee, an argument bolstered by the judge's findings that Rosel had instigated the strike. The judge, as a local bacharel, was surely aware of Osmar's unsavoury reputation, and he evidently rejected Osmar's assertion that he paid Rosel Cr $ 321,000 at the time the receipt was signed, especially because there was no legal basis for a payment of that magnitude. Rather than rely on his client's dubious credibility, Antonio Olimpio merely argued that Rosel bore the burden of discrediting the document because it was authenticated by the "appropriate union".

CLT Article 487, paragraph 2 The original in Portuguese reads: ... ilustre patrono do reclamante. 278 Despite the provisions of the 1962 statute, the judge was unimpressed with the union receipt because it was

...imperfect, ambiguous, amorphous, vague, and is a violation of the rights of the claimant, since, badly drafted, it does not distinguish the legal portions corresponding to the rights that are due to the claimant and in addition does not make explicit reference to the monetary amount of the portions corresponding to those rights of which the respondent was being released.

This result may seem surprising but it addressed fairly the mischief caused by practices to which employers often resorted ~ the techniques of caxixe — to take unfair advantage of illiterate workers who were incapable of protecting their own labour rights against an unscrupulous employer. The judge's decision was vindicated when in 1970 a statute was enacted that adopted the rule applied by the judge in this case and generalized its application to the entire CLT regime.65 The willingness of the judge to disregard a receipt which was authorized by the Ilheus/Itabuna STR was indicative of the low regard in which the STR was held at this time in history. The inability of the STR to settle accounts in a proper fashion was evidence of incompetence or corruption, depending on how the events in Castelo Novo are to be interpreted.

Appeals were filed by both parties in this case. Rosel's appeal was lost on the grounds that he did not discharge his burden of proving that he had been terminated, and, according to the CLT, "she or he who alleges must prove."66 Osmar lost his appeal on a technicality when Antonio Olimpio's office failed to pay the court costs within five days of filing the appeal, as the CLT required, although the payment was only two days late.67

65 Lei No. 5.584 de 26 de Junho de 1970 66 CLT Article 818 67For the procedural requirements on an appeal, see CLT Article 789 (4) and 893-902, and Decreto Lei 74 de 21 de Novembro de 1966. 279 Osmar attempted an appeal to the TST but leave was denied by the president of the TRT5.68

Although the decision to deny leave was issued on September 1, 1965, it was only a year later that the execution process was initiated. After an extensive dispute over the calculation of damages, the judgment was satisfied on December 9, 1966, and Rosel received the equivalent of forty-five days pay at the regional minimum wage.

In a further development, there was evidence of continuing antipathy between the Ilheus STR and the junta. By 1970, the Ilheus/Itabuna STR had split into two separate entities, one for each of the municipalities, and the Ilheus STR was headquartered across from the junta offices. Two workers terminated from the union's Ilheus office filed a claim for their labour rights.69 Rather than retain Antonio Olimpio or another of the worker-friendly lawyers, the union retained Amilton Ignacio de Castro, the same lawyer who acted for Jose Carlos de Sa Adami in the cases examined in sections 8.4 and 8.5. Although it was understandable that the STR would retain an employer-side lawyer in these circumstances, the choice of Castro rather than someone more circumspect in his approach hints that the relation between the STR and the junta remained uncomfortable.70

However, the approach of the Ilheus STR to claims for labour rights changed after 1970 when a statute was enacted requiring unions to provide legal representation to

Osmar retained Jose Martins Catharino to appeal the TRT5 decision to the TST. 69 For a reference to this file, see Appendix A. 70 The union practice at the time was to settle the claims of rural workers directly with the growers by discounting labour rights to induce the growers to settle and then collecting 20% for their services: .Antonio Dias Nascimento, "Peasant Social Movements and Rural Workers' Trade Unions in Bahia (1972- 1990)," (unpublished PhD dissertation, University of Liverpool, 1993). A similar critique was made by the Church activists in the region with whom Dias had been associated: Trabalhadores do Cacau: Uma Presenca junto aos Assalariados Rurais (Salvador, Bahia: Suplemento dos Cadernos do CEAS, 1990); Equipe Rural CEAS, "A resistencia dos trabahadores do cacau," Cadernos do CEAS.96 (1985), page 19. My experience with the Ilheus STR in 2007 suggested that the STR did not perceive the junta as an ally and would avoid filing a claim whenever possible 280 71 indigent claimants for Labour Justice claims, on the one hand providing an added incentive to settle claims in the union office, and on the other hand restricting the ability to avoid filing claims against grower who refused to settle. Moreover, in March 1973 the Bahian federation, FETAG — having escaped the control of the Ilheus Renovadores — organized a conference in Salvador which marked a turn towards the "new unionism" movement, as we saw in section 4.8. The shift in the union's posture is exemplified by 79 the case of Raimundo Costa Alencar, who was fired in May 1973. He went first to the Ministry of Labour office in Ilheus to claim his labour rights and was re-directed to the office of the Ilheus STR. The employer offered to settle for only a small fraction of the value of the claim; the employer instead claimed that Raimundo was discharged for just cause, a position that they were ultimately unable to sustain, as we will see in section 10.2. The STR then referred Raimundo to a lawyer from Itabuna named Antonio Nunes who likely worked for the usual contingency fee. During the course of a hearing before Judge Maria Nunes de Silva Lisboa, Judge Vieira's successor, the judge noted the presence of the union's secretary, Joao Batista de Souza, who represented the union at the hearing without taking part in the proceedings, further confirmation of a change in the STR's approach, signaling that by the end of the time of Vieira court the STR was prepared to use the dissidio individual as a form of contention. 8.8 Concluding Chapter 8

In this chapter we saw that the performance of the Vieira court conformed closely to the "ideal model" that was proposed in Chapter 7. Systemic reasons help to explain the quality of the junta's performance. Its caseload was far lighter than that of juntas explored in earlier studies considered in Chapter 7. The overwhelming majority of the

71 This provision applied to Labour Justice claims only. Virtually all rural workers fell within the definition of indigent because they earned less than two times the minimum wage. Legal aid for indigents was otherwise available upon application to the lawyers' professional body, the OAB, pursuant to a 1950 statute: Lei No. 1.060 de 5 de Fevereiro de 1950. In the case of legal aid, a contingency fee of 15% was allowed, and an unsuccessful opposing party could be assessed to repay this fee. 72 JCJ 13 . See Appendix A 281 contested claims in the Vieira court were filed by workers who were no longer employed by the respondent, and, in most cases, had been terminated without proper cause or compensation. Thus virtually all contested claims filed had at least some merit.

A further significant difference between the Vieira court and the juntas in the previous studies was that contested claims were disposed of in the Vieira court at the first appearance. Consequently, the prospect of delay was not a major factor in conciliation. Instead, conciliated settlements were induced by the structural incentives provided by the ETR. The lawyers who appeared regularly in the Vieira court would know that Judge Vieira was protective of labour rights and that the outcome of a contested claim would be "coherent", as the term was defined in section 1.4.

Finally, as the biographical sketch of Judge Vieira suggests, his "background prescriptive theory" was one that favoured the protection of labour rights. His interactions with the members of the Ilheus bar indicated his commitment to the rule of law — as defined by Kennedy — as well as his determination to maintain the authority of his junta. Although the judge and the junta were disrespected by some bachareis and the coronets that they defended, he was supported by lawyers such as Antonio Olimpio, another trabalhista jurist and the dean of the Ilheus labour bar. Thus, while the authority of the junta was initially challenged by the coronets, their experience with the junta soon taught them that this stance involved the risk of serious negative consequences, up to and including the loss of their property.

The relation between the Vieira court and the Ilheus STR was also problematic at the outset. The Ilheus STR avoided deploying the dissidio individual as a form of contention and preferred instead a bureaucratic approach to the settlement of claims for labour rights. The STR was compliant with the military regime and its approach to labour rights showed that the STR had been co-opted by the growers. By contrast the Vieira court showed a willingness to challenge the performance of the STR when it

282 compromised the protection of labour rights. It proved itself to be a more consistent ally of rural workers in this regard than was their own union.

The case study ends in 1973 ~ when the ETR was repealed ~ the same year the Ilheus STR began a transition in its political orientation as it followed the lead of CONTAG towards using the dissidio individual as a form of contention.

283 Chapter 9: Procedural fairness

9.1 Introduction to Chapter 9

This chapter is concerned with the procedural issues which confronted the Vieira court. Although ultimately the distinction between procedural and substantive rights is not sustainable, the distinction is maintained in this chapter and in Chapter 10 for purposes of analysis.

Within the juridical field, the contending parties were endowed with formal equality, and the procedural rules of the dissidio individual applied equally to the contending parties. As a form of contention, the dissidio individual offered rural workers an opportunity to assert their labour rights as the formal equal of the coroneis, within a social universe that was otherwise characterized by social inequality. The approach of the contending parties to the dissidio individual was interactional in the sense that the contentious strategy of one party was deployed in relation to the strategy of the other party. The presiding judge was expected to hear the case presented by both parties and to apply the rules of procedure equally, while the contending parties used the rules of procedure strategically to achieve a desired outcome. Procedural rules and substantive norms were intertwined in the dissidio individual because the judicial preoccupation with procedural fairness1 could frustrate an otherwise valid substantive claim. The outcome of this interaction between procedural and substantive rights was the juridical relation in which state law was found.

This chapter provides an overview of how a dissidio individual was conducted in the Vieira court and is organized chronologically in the order of the three stages through

1 The phrase "procedural fairness" refers to the application of the common law notion of natural justice in administrative law, which can be reduced to the principles of an unbiased adjudicator and audi alterem partem. These principles are generally incorporated into the Brazilian legal system through the constitutional notion of equality under the law. 284 which a contested claim proceeded: service of the originating documents, the hearing, and execucao (execution or enforcement). An interesting aspect of the dissidio individual process is that, despite the formal equality of the contending parties, the rules of procedure required the junta to be pro-active at each stage, which enured to the benefit of the claimant. In the execucao stage the character of the dissidio individual was altered to the extent that it became, in effect, a form of contention between the junta and the judgment debtor.

Thus in a dissidio individual, the rules of procedure were structured in a dynamic of interlegality that involved the ETR, the CLT and the Code of Civil Procedure. As a general rule, the provisions of the CLT -- both procedural and substantive ~ applied in claims filed by rural workers, except to the extent that they "contradicted or constrained" the provisions of the ETR. The ETR set out certain procedural rules which applied to the claims of rural workers, but the procedural gaps in the ETR were filled by the CLT which contained a more complete code of procedural rules for both a dissidio individual and a dissidio coletivo. The authors of the CLT admitted implicitly that there may be gaps in the procedural code of the CLT4 and provided that in the event of such a gap the Code of Civil Procedure5 would apply. The question of whether or not there was a gap in the ETR or in the CLT was a matter of judicial interpretation and for this the labour judge relied on his or her "background prescriptive theory".

9.2 Problems of service

In section 2.4 we saw that the service of court documents had historically been a problem in the region because of a lack of court resources and the relative isolation of many fazendas. During the era of the Vieira court the junta secretariat continued to

2 ETR Article 179. The Portuguese phrase is "contradigam ou restrinjam." 3 CLT Articles 492-500 4 CLT Article 769 5 Codigo de Processo Civil, Decreto-Lei no. 1.608 de 18 de Setembro de 1939, replaced by Lei no. 5.869 de 11 de Janeiro de 1973. My references are to the 1939 Code unless otherwise specified. 285 confront similar problems, although the region's transportation infrastructures had developed considerably. For example, in one case6 the clerk went by bus to the District of Inema, in the remotest corner of the Municipality of Ilheus, only to discover that the respondent's fazenda was yet another eight kilometers by foot or horseback from the town center. Judge Vieira used his authority as a member of the judiciary to call upon the district's Justice of the Peace to serve the initial. In another case7 the respondent lived in the District Olivenca, which at the time was not accessible by public transport. The process remained stagnant for three years until the clerk learned that the respondent was in a bar next to junta office and proceeded to effect service on him in the bar. From this we can see that although the resources of the secretariat were thin, the Chefe spared little effort in ensuring that the junta documents were served in as timely a fashion as possible, while the coroneis sometimes avoided service as means of resisting the authority of the junta.

The rules for service set out in the CLT were in several ways more relaxed than the rules of civil procedure. The claimant was given notice of the first appearance date when the claim was filed, and the rules required that a notice of hearing and a copy of the initial (statement of claim) be served on the respondent at least five days before the date of the hearing. Service by a judicial official such as the junta's clerk was effective if the clerk brought the document to the attention of the respondent in a reasonable manner, even if the respondent was not personally served or refused to accept a copy of the documents. In the normal course of events the initial was served by mail with a return receipt or acknowledgment signed by the respondent or a member of the household if the respondent was normally available at that address. Service by mail was effective in most cases but, as we saw above, locations such as Inema and Olivenca were without mail service at the time which in effect made personal service necessary. Proof of service was

6 JCJ 49. See Appendix A. 7 JCJ 86. see Appendix A. 8 CLT Article 841, para 1 286 provided by the clerk through a notation in the file or by a signed return receipt or acknowledgement of service. If service was not effected as required at least five days prior to the first appearance the hearing was adjourned for two or three weeks to effect proper service. If the hearing proceeded and service was later proven to be defective, the proceedings were deemed to be a nullity.

It was open to the respondent to challenge the sufficiency of service and overturn a judgment issued in his or her absence. In the case of Francisco Aleixo de Santana,10 for example, a prominent grower who had not appeared for the hearing later established that the address indicated for service was incorrect and he denied that the signatory of the return receipt was a member of his household, much to the frustration of Antonio Olimpio who acted for the claimant. When a substitute judge declared that the proceedings were a nullity, Antonio Olimpio appealed this decision without success11 to the TRT5 and a new hearing was ordered, with attendant delay.

If a respondent was known to be physically unavailable for service, or was found to be avoiding service, the judge could order substituted service by edital (announcement), meaning that a copy of the hearing notice and the initial was published in the municipality's official journal and/or a local newspaper, and/or posted at the junta's office, as we will see later in this section. While Judge Vieira was prepared to order service by edital in circumstances in which the claim could not otherwise proceed, he applied this principle equally to coroneis and rural workers even if the effect was occasionally to prejudice the claimant's rights.

In one case a group claim was filed in November 1965 by Paulo Cardoso Pinto — Antonio Olimpio's first law partner — on behalf of Pompilio Jose dos Santos,12 his spouse

9 CLT Articles 774 and 841 10 JCJ 83. See Appendix A "The procedure used was known as "agravo do instrumento", which was like applying for a prerogative writ to quash a quasi-judicial decision. 12 JCJ 88. See Appendix A 287 (companheira) Meretina Maria de Jesus and their four sons.13 The family had worked for Jose Oligario Ferreira since 1952 on a fazenda located in the Municipality of Almadina, which at the time was within the jurisdiction of the Ilheus junta. At the age of eighty-two, Ferreira decided to retire, so in August 1964 he sold both of his fazendas to a family member. A week before the sale he told Pompilio and Meritina that the land was sold and that they should move on, so the family packed up and moved into the town of Almadina. Fifteen months later they filed their claim, well within the two year limitation period.

Ferreira resided in Itabuna with his wife Elpes and they maintained a second residence on a fazenda in the neighbouring Municipality of Coaraci. Itabuna was outside the jurisdiction of the Ilheus junta, which raised a procedural difficulty that the CLT had not foreseen. The need for service out of the jurisdiction arose frequently in the Ilheus junta: while the jurisdiction of the junta was to hear claims that originated in workplaces within the comarca (judicial district), many growers resided elsewhere, in Itabuna, Salvador, or even Rio de Janeiro. Service out of the jurisdiction was effected through a carta precatoria (letter of request) addressed to the president of the junta in the area where the respondent was to be found. The secretariat of the junta receiving the request then served the initial, following the same procedures as in their own cases. The procedure resulted in only a minor delay in most cases.

In the case of Pompilio and his family, the claim was filed on November 17 and the first appearance was scheduled for December 2. However, service in this case proved to be more difficult than usual because, in addition to living outside the jurisdiction, the respondent was unavailable for, or avoiding, service. At the first appearance Judge Vieira was handed a letter from the president of the Itabuna junta, advising that when the clerk attended at the Ferreira residence only his wife Elpes was at home. Elpes told the clerk that her husband was not at that address and she refused to acknowledge service. Judge

13 A group claim was allowed if the respondent was the same and if the subject matter of the claim was identical (identidade de materia): CLT Article 842. 288 Vieira adjourned the hearing to December 15 and requested the Itabuna junta to make another attempt. On December 15 the president of the Itabuna junta again reported that Ferreira was not at home so the case was adjourned to January 14, 1966. In these circumstances Judge Vieira ordered service by edital. The Chefe drafted the edital and posted it on the official notice board at the junta office, while Pinto (the claimant's lawyer) caused it to be published in the Official Journal (Jornal Oficial) of the Municipality of Ilheus on December 28, 1965. The edital took up over a half page in the Official Journal as it included the full text of both the initial and the notice of hearing. The claimants bore the initial cost of publication so Pinto was likely out of pocket as Pompilio, Meretina and their family were indigent.

When the hearing resumed on January 14, 1966, Ferreira did not appear so Judge Vieira proceeded in his absence. The value of the judgment was far from insignificant, even for a large grower such as Ferreira, amounting to over 547 days pay at the regional minimum wage for each of the six claimants. The bulk of this amount was for severance pay which was doubled because the claimants were estabilitdrios, or workers with job security, who were fired without just cause. We will return to the notion of estabilidade in Chapter 10.

Having established that Ferreira was liable for a year and a half of wages for six of his former workers, Judge Vieira was left with the problem of how to execute a judgment against a missing respondent, and the problem was compounded by the fact that Ferreira's land could not be attached (penhora) because it was already sold. We will return to the execution process in section 9.4, but to appreciate the judge's dilemma we should be aware that the rules required that the judgment debtor — if not present when judgment was rendered — be served with notice of the judgment according to the same criteria as for service of the initial. Service by edital was available but it was at the expense of the claimants, and in any event it seemed pointless to proceed hastily when the judgment debtor owned no property within the jurisdiction. The file remained

289 dormant for six months until the secretariat posted another edital in the junta office in July 1966. On this occasion the lawyer Pinto declined to pay for its publication but instead set about to locate Ferreira, who, he discovered, had returned home to Itabuna in October 1966. Another carta precatoria went out and Ferreira was duly served with the notice of judgment, to which he responded by filing an appeal, which was timely because the appeal period ran from the date of notice rather than the date of the judgment.

The appeal turned on the issue of whether or not the initial service by edital was effective.14 Ferreira's lawyers argued that, although the CLT allowed service by edital, it left gaps in the way such service should be carried out, and such gaps should be filled by the Code of Civil Procedure. The rules of civil procedure required that the edital be published twice in the official state journal and at least once in a local newspaper, which was more onerous than the corresponding rule in the CLT. The lawyers argued that this was fair to the respondent because a newspaper announcement would more likely come to his attention, although for an indigent claimant this may seem unfair because the claimant bore the expense of publication. In addition, the rules of civil procedure required at least twenty days notice of the hearing while the edital only gave seventeen days notice.15

This argument was supported by the office of the procurador regional but rejected by the TRT5 judges who ruled that the matter of service by edital was codified by the CLT,16 leaving no gap to be filled by the Code of Civil Procedure. By choosing the rules of the CLT over the rules of the Code of Civil Procedure, the appeal judges ensured

The appeal process was expeditious in the sense that the time periods were short and the appeals were decided mainly on the basis of the written record. The parties were not required to appear for the appeal hearing although parties often retained counsel in Salvador to make a brief oral argument on their behalf. A panel of usually five judges sat on an appeal; one judge acted as the "relator" to explain the contents of the file to the other judges, while another judge acted as the "revisor" to offer a second opinion. The judges voted and a written decision was issued, with brief reasons, usually the same day. An agent of the procurador sat with the panel of judges. 15 Code of Civil Procedure, Articles 177 and 178. 16 CLT Article 841 290 that the labour rights of the claimants were formally protected; given Ferreira's age and the fact that he had sold his land, it is unlikely that the judgment was ever satisfied, although the record is inconclusive in this regard.

Service by edital proved to be a double edged rule when it was used by a grower, Joao Roberto Aboud Tavares, from one of the elite families featured in section 2.3. 1 7 Manoel Evangelista Santos had worked for Tavares on the Fazenda Altamira in the Municipality of Barro Preto since early 1955. According to Tavares, Manoel disappeared on December 20, 1964, leaving behind his spouse and five children, including an infant born a few days prior to his disappearance and a daughter who was gravely ill. The spouse and children continued to live on the fazenda with no visible means of support, except for the charity provided by the Tavares, who applied to the junta on March 13, 1965 to bring this situation to an end by rescinding Manoel's employment contract.

Tavares was confronted with the problem that Manoel was an estabilitdrio because by the time the application was made he had accumulated over ten years of service. As we will see in section 9.3, the termination of an estabilitdrio required an administrative inquiry to prove just cause, prompting Tavares to apply to the junta for an inquiry which would bring his obligations to an end. The grounds alleged for termination were that Manoel had abandoned his employment. Tavares pleaded that he had paid Manoel his labour rights in full — an improbable assertion in the context of the cacao region — and that he owed nothing further to Manoel or his family. Manoel having disappeared, he was unavailable for service of the originating documents, so Tavares requested an order for service by edital. Relying on the facts alleged in the application,

17 JCJ 92. See Appendix A Barro Preto was a municipality which was "emancipated" from Ilheus in 1962 but remained within the comarca (judicial district) of Ilheus. 1 CLT Article 853: an "Inquerito administrative trabalhista", referred to in the CLT as "Inquerito para Apuracao de Falta Grave". 20 ETR Article 86 g; CLT Article 482 (i) 291 the secretariat scheduled the inquiry for April 22, 1965 and prepared an edital which Tavares published in the Official Journal on March 26, in the Didrio da Tarde (the newspaper featured in section 4.5) on March 27, and in the Official Journal for a second time on April 9; this complied with the rules set out in the Code of Civil Procedure, which we know were more onerous than the rules of the CLT regime.

When Judge Vieira convened the hearing on April 22, Manoel did not appear ~ not surprisingly — so the Inquiry proceeded in his absence. Tavares told the judge that when Manoel was paid his regular wages and his vacation pay on December 20, 1964, he announced that he was heading to the local market and was neither seen nor heard from again -- neither by his spouse, nor by his co-workers, nor by a local woman who was his "close friend". Tavares speculated that Manoel was escaping the burden of caring for his family; he had abandoned his wife and five children in precarious circumstances and his gravely ill daughter had died a few days before the hearing. On the basis of this information, Judge Vieira pronounced judgment, making a finding of just cause for termination and declaring the employment contract rescinded. Notice of the judgment was served by edital and again Manoel failed to respond.

Manoel's wife remained invisible throughout the proceedings and was not served with notice even though the rescission of Manoel's employment contract undoubtedly would have led to the eviction of her and the remaining children. The jurisdiction of Labour Justice was limited to cases brought to the juridical field by a claimant or applicant, leaving the onus on Manoel's wife to assert whatever rights she may have had on her own behalf. A rural union might possibly have assisted in such circumstances.

As we saw in the case involving Pompilio and Meretina, service outside the jurisdiction required that a carta precatoria (letter of request) be sent from one junta to another. The case of Francisco Baptista do Nascimento21 involved a challenge to the

21 JCJ 46. See Appendix A 292 sufficiency of service outside the jurisdiction, again based on an argument that the rules of civil procedure ought to apply. Francisco worked on the Fazenda Curupati in the Municipality of Ibicarei from September 1962 to January 1965. The fazenda was owned by Milton Correia de Araujo — a medical doctor who resided in the fashionable district of Barra in Salvador ~ and it was managed by an administrador, who terminated Francisco in January 1965.

Francisco filed his claim at the junta on February 8 and the secretariat scheduled the first appearance for March 12, over four weeks later. This allowed time to serve Dr. Correia at his home in Barra through a carta precatoria, addressed to the president of the 6th vara (sub-division) of the Salvador junta. According to a telegram sent by the vara president on March 9, Dr. Correia was served on March 5. When Dr. Correa did not appear on March 12, the suplente (supplementary judge) proceeded in his absence. The date of service, the date of the telegram and the date of the hearing are all relevant to the final outcome.

A judgment was issued against Dr. Correia on March 12 and he was served with notice of judgment, again by carta precatoria, on March 16, 1965. This prompted him to retain an Ilheus lawyer, Anna Maria Menezes ~ women lawyers were rare in Ilheus, but

99 not unheard of — to file an appeal within the ten day limitation period. Her argument was framed around Article 841 of the CLT which instructed the secretariat to schedule a hearing not less than five days from the date of service. Menezes asserted that March 9 was the date of service ~ the telegram was clear that the correct date of service was March 5 ~ which was less than five days before the first appearance date. On behalf of Francisco, Antonio Olimpio responded that Menezes referred to the March 9th date "maliciously" and her appeal was a "typical delaying tactic." Menezes argued in the alternative that the purpose of the five day notice period was to provide the respondent

CLT Article 893 (11). The period was later reduced to eight days. CLT Article 841 293 with sufficient time to prepare his case. With respect to Dr. Correia, he lived in Salvador and needed time to travel to Ilheus, a distance of seven hundred kilometers by road and Dr. Correia was known to have a fear of flying (averso a viagems aereas). Although this alternative argument had some attraction, in fact Dr. Correia could have appeared through his administrador or he could have sought an adjournment rather than do nothing until served with the notice of judgment.

The TRT5 dismissed Dr. Correia's appeal on May 6, 1965 on the grounds that the paramount purpose of the five day notice provision in the CLT was not to provide procedural fairness to the respondent but rather to provide an expeditious hearing to the claimant and in this case the secretariat had followed its standard procedure, which satisfied the requirements of CLT.

Dr. Correia retained a labour lawyer from Salvador, Marcelo Duarte, to file an appeal to the TST {Tribunal Superior do Trabalho or Superior Labour Tribunal), and leave was granted by the President of the regional tribunal. Duarte raised a novel argument framed around a procedural gap in the CLT, which was that the CLT had no provision for service out of the jurisdiction. The carta precatoria method was borrowed from the Code of Civil Procedure, leading Duarte to argue that the relevant notice period should also be that of the Code of Civil Procedure, which was ten days from the date that proof of service was filed in court (rather than from the date of service). In civil proceedings, went the argument, procedural fairness was paramount and the purpose of the notice period was to provide procedural fairness to the responding party and allow him to file objections to the manner of service, which could not reasonably be ascertained until proof of service was filed. Under the rules of civil procedure, Menezes had the correct date in mind — July 9 rather than July 5 — indicating that her pleadings were not

CLT Article 896 para 1 CLT Articles 768, 769; Code of Civil Procedure Article 175 294 as "malicious" as Antonio Olimpio had suggested.26 The appeal was dismissed by the TST on the grounds that the CLT rules for the length of notice applied because the right of a claimant to an expeditious hearing was paramount. Ironically, given the reasoning of the TST, although the claim was heard expeditiously, the appeal process itself delayed satisfaction of the judgment for some thirty months from the date of the judgment.

The debate over the procedural requirements for service by edital or by carta precatoria involved an aspect of interlegality between the CLT and the Code of Civil Procedure. The arguments raised as grounds for appeal and the arguments accepted by the appeal judges were both coherent in the sense that they were both rational. However, at stake was a competition between two "background prescriptive theories" -- that of the CLT, which privileged the protection of labour rights, and that of the rules of civil procedure, which privileged procedural fairness — and the choices made by the judges in such procedural disputes often had a direct impact on substantive labour rights.

9.3 The hearing process

A hearing proceeded through twelve stages, in the following order:

1. The clerk called the case.

2. Respondent counsel gave a reply (contestacao), limited to twenty minutes.

3. The judge and vogais attempted to conciliate a settlement.

4. The judge questioned the claimant.

5. The judge questioned the respondent.

6. The judge questioned the claimant's witnesses.

7. The judge questioned the respondent's witnesses.

26 Code of Civil Procedure, Article 292. 295 8. Claimant counsel made final argument, limited to ten minutes.

9. Respondent counsel made final argument, limited to ten minutes.

10. The judge and vogais attempted conciliation for a second time.27

11. The judge proposed a disposition to the vogais.

12. The judge delivered the disposition in open court, with or without a dissent.

The procedural rules for the hearing of a dissidio individual were set out in detail in the CLT and allowed a claim to be heard summarily. As we have seen, the TST also favoured expedition in the scheduling of a dissidio individual?* Each party was called upon to call a maximum of three witnesses and the lawyers were allowed only a limited time to make opening statements and argument. The presence of the parties was required and they were obliged to submit to questioning by the judge, although their statements were unsworn and did not constitute formal evidence. A witness was disqualified from giving evidence under oath if he or she was a relative or close friend of the party; for example, in one case the witness and the claimant were compadres and Judge Vieira allowed the witness to make a statement for information purposes only.

The judge controlled the questioning of the parties and their witnesses, meaning that all relevant questions were put to the parties and their witnesses by or through the judge and not directly by the lawyers in the form of examination or cross-examination. A clerk was present to record the following information:

1. the presence of the parties;

2. the procedural steps taken;

Judge Vieira referred to the attempt at conciliation as the "ocasao processual de conciliacao". 28 The CLT rules required conciliation before the hearing of evidence and the judges were required to make a further attempt at conciliation after completion of final argument: CLT Article 764 ff 29 CLT Article 829 296 3. a summary of the evidence as dictated by the judge;

4. a summary of the lawyers' opening statements and arguments, as dictated by the judge;

5. the disposition of the claim, including a summary of the reasons for judgment. °

We saw in section 8.2 that in the absence of the claimant, the claim would be "archived" or dismissed. When a respondent was absent after being properly served, he or she was deemed to be revel (in default), and the judge so declared. The consequence of a revelia (default) was that the facts pleaded in the initial were deemed to be admitted {confissao ficta), at least to the extent that they were not contradicted by oral evidence. Judge Vieira used a cautious approach in a situation of revelia; despite the consequential confissao ficta he inquired into the veracity of the facts set out in the initial in order to ensure that the disposition did not exceed the claimant's legal entitlement. As Judge Vieira pointed out in the case of Antonio Ferreira Botelho and his companheira Anita Velame Botelho:

A ficta confissao does not extend to material which is outside the ambit of the initial.

The Botelho case illustrates the double edged nature of this approach. Antonio and Anita had worked on the Fazenda Bonfim da Ribeira in the Municipality of Urucuca, which was owned by Firmino Gomes Baracho (see section 8.6). The Barachos were a novo rico family of large growers and Firmino lived in the center of Urucuca on the central square which was named for his coronel father.

After 1970, a record of proceedings was not required if the value of the claim was less than twice the minimum wage. 31 Code of Civil Procedure, Article 229 32 JC J 31. See appendix A. The original words of Judge Vieira in Portuguese read: ... nao cabendo a ficta confissao a material extranha a inicial. 297 Antonio and Anita were hired in March 1964, living on the fazenda and working as diaristas for a nine hour day, five days a week; Antonio also worked Saturday mornings when he conducted the weekly pay parade. Based on these facts, Antonio and Anita were both entitled to overtime and Antonio was entitled to a paid weekly rest day because he worked a six day week. They also claimed that they were paid less than the regional minimum wage: in 1964, when the minimum was Cr $ 840, Antonio was paid Cr $ 600 and Anita Cr $ 300; in 1965 the minimum was raised to Cr $ 1.320 and Antonio was raised to Cr $ 1.300 ~ almost the minimum — while Anita was raised only to Cr $ 400; for his part, Baracho had a history of using women as cheap labour, although women were entitled to equal pay for equal work, and he was later challenged by the Urucuca STR in this regard.

It appears that Antonio was in contact with the Urucuca STR because in May 1965 he attended at the office of Antonio Olimpio ~ to whom the Urucuca STR referred its litigation cases — to assert his claim for labour rights. The claim was drafted by Accioli Moreira — then Antonio Olimpio's law partner — based on information provided by Antonio. Either through negligence or because he was given the wrong facts by Antonio, Moreira made Anita the victim of a "litigation incapacity" because he pleaded the same facts for her as for Antonio. That is, instead of saying she worked five days a week, he pleaded that she worked six days a week, and instead of saying she earned less than Antonio he pleaded she earned the same as Antonio.

Antonio and Anita were naive to think that they could file a claim against Baracho while they were still employed and living on the fazenda. When Baracho was served with the notice of hearing he reacted immediately by firing Antonio and Anita, leaving them

33 CLT Article 460-461. The equal pay protection of the CLT was quite broad because male and female workers were entitled to equal pay protection if they were doing the same or the equivalent job of a higher paid worker. 34 Mistakes of this nature are sometimes referred to as "litigation incapacities": Angela Fernandez, "The Pushy Pedagogy of Pierson v. Post and the Fading Federalism of James Kent," (2008, ssrn.com/abstract=984163). 298 homeless and unemployed. Baracho's conduct was predictable because employer reprisal was a universal norm. What is surprising is that the Urucuca STR and Moreira would proceed with a claim in these circumstances where the Botelho's were vulnerable. Their terminations were not at issue during the hearing because they took place after the claim was filed.

The first appearance was on June 21, 1965, a month after the claim was filed, and when Baracho failed to appear Judge Vieira declared a revelia. Despite the consequence of confissao ficta, Judge Vieira proceeded to question the claimants and their witnesses. When he questioned Anita, she revealed that her wages were lower that what was indicated in the pleadings and that she did not work Saturdays.

Judge Vieira's was particularly cautious in a claim for overtime, requiring the corroboration of witnesses before he would award overtime pay, despite the legal effects of confissao ficta. Moreira had three witnesses available for this purpose, the first of whom testified that he had also been fired by Baracho. As he completed his evidence, Baracho entered the hearing room. He was allowed to remain as a member of the public but Judge Vieira ruled that he remained a revel because a declaration of revelia had been made at the stage of the contestacao when Baracho was absent. Despite the revelia, however, Judge Vieira accorded Baracho the right to participate in the hearing; he invited Baracho to make a closing argument when the hearing reached the ninth stage but Baracho remained silent. Judge Vieira then proposed a conciliated settlement, as the rules required, which Baracho refused.

The result that Anita achieved in this case was disappointing because of errors made by her lawyer and Judge Vieira's cautious approach. As noted, the rule of confissao ficta provided that the facts pleaded in the initial were deemed admitted; however, if the facts were not supported by the oral evidence, relief would not be granted. Anita' s lawyer pleaded that she was paid at the same rate as Antonio whereas her actual rate was

299 much lower, reflecting Baracho's propensity to use women as cheap labour. Despite the revelia, Judge Vieira refused to allow relief based on her actual rate because it was not pleaded. On the other hand, Anita's lawyer had pleaded that she, like Antonio, had worked a six day week when in fact she only worked a five day week. In this instance Judge Vieira refused to grant relief based on the pleadings because Baracho, as a revel, had no formal notice of this aspect of her claim. In effect, Anita paid a price for her "invisibility" as a rural woman, while her lawyer learned the dangers of under-pleading a valid claim and the limitations of over-pleading. The harshness of the rules of pleading helps explain the evolution of an "industry of judicial accords" (see section 7.4).

Although in the "ideal model" a dissidio individual proceeded in the twelve stages listed above, the claim involving the termination of an estabilitdrio (a worker with job security) required that other stages be added. Here we will consider only the procedural rights of an estabilitdrio because the substantive aspects of estabilidade are considered in section 10.3.

Joao Ferreira da Silva and Osvaldo Mesquita were estabilitdrios who worked on the Fazenda Independencia in Urucuca, which was owned by the late Antonio Ferreira da Silva and his wife Waldetrudes Peixoto da Silva, and operated by their son Newton Peixoto da Silva as the administrador. When Antonio died in January 1955, Waldetrudes became the trustee (inventariante) of his estate in July 1955 and in this capacity she discovered Newton was exploiting the resources of the fazenda to pursue his own business interests. To make matters worse, Newton used Joao and Mesquita as his homens de confianca (men of trust), involving them in his own business interests as well as the work of the fazenda, and operating, with their connivance, a truck system, an issue to which we will return in section 10.3. Although both had been hired by Newton's father to do manual labour, Joao did the fazenda's payroll and banking while Mesquita was the overseer (fiscal) to whom the foremen (cabo de turno) of the field workers reported.

JCJ 94. See Appendix A. 300 Armed with this information, in July 1965 Waldetrudes hired a new administrador to replace Newton. She then set about to deal with Joao and Mesquita, who as estabilitdrios could not be fired without just cause. In August she advised them that they were relieved of their duties and instructed Joao to surrender his office key, to which Joao replied that he would only surrender his key to Newton. However, she continued to treat them as employees, paying their wages and allowing them to remain in their housing. On December 3, 1965, Waldetrudes provided written instructions to Joao and Mesquita that they were to report daily for duty on the Fazenda Independencia and obey the orders of the new administrador. When asked to sign these instructions to acknowledge receipt, they refused to sign; they also refused to return to manual labour. On December 14 Waldetrudes discontinued their wages, to which the two workers reacted by hiring lawyers and filing a claim against the estate, asserting that their wages and other labour rights were improperly denied and that they were entitled to double severance pay.

When Judge Vieira convened the hearing on January 24, 1966, the estate was represented by Paulo Cardoso Pinto. Cardoso filed a counterclaim (reconvencao) on the morning of the hearing in which he alleged that Joao and Mesquita had been fired for just cause, on the enumerated grounds of insubordination and abandonment of their employment.36 This raised several procedural issues, not the least complicated of which was that the issue of just cause required an administrative inquiry {inquerito administrativo trabalhista) because Joao and Mesquita were estabilitdrios. The practice in Labour Justice ~ according to Judge Vieira ~ was to follow the rules set out in the Code of Civil Procedure, which allowed the respondent to proceed by way of reconvengao. There remained, however, an issue of timeliness because a request for an inquerito had to be made within thirty days of the alleged offence. Given that the alleged insubordination took place on December 3, this allegation was untimely. However, the allegation of abandonment was timely. To constitute just cause, abandonment must be

36 ETR Article 86 f and g and Article 97; CLT Articles 853-855 37 An inquiry had to be requested within thirty days of the infraction. 301 continuing for over 30 days; in this case, the alleged abandonment began on December 3 and continued beyond the 30 day period (beyond January 2). The request for an inquerito was timely because as of the hearing date (January 24) it was made within 30 days from the day of the alleged offense (deemed to be January 2). Based on this reasoning, Judge Vieira adjourned the hearing to February 9, 1966, giving time for the claimant workers to file a reply (impugnagao).

When the hearing resumed the parties had joined issue over whether Joao and Mesquita had abandoned their employment without just cause. Cardoso framed his argument around a statutory norm of the ETR which was particularly suited to the mode of production in the cacao region because its purpose was to guarantee a flexible work force:

In the absence of an express agreement to the contrary, it is understood that a rural worker is obliged to perform any type of duties compatible with his personal capacity.39

Cardoso therefore argued that as rural workers Joao and Mesquita were required to perform manual labour if instructed to do so. Judge Vieira appeared to be unsure of his grounds on this issue and this was one of the rare instances in which he reserved his decision. When the hearing resumed a week later,40 he upheld the allegation of abandonment on the grounds that Joao and Mesquita had refused to perform manual labour as instructed and that as rural workers the ETR required them to perform whatever duties they were assigned. Their claim was not entirely without merit, however, and the

tli estate was ordered to pay vacation pay, the 13 month, and a paid weekly rest day.

38 Code of Civil Procedure, Article 193 39 ETR Article 68 reads: A falta de estipulacoes expressas, entende-se que o trabalhador rural se obrigou a todo e qualquer servico, compativel com a sua condicao pessoal. 40 In an inquiry the employer was required to pay die court costs before a final decision was rendered. Costs were 2% of six times the workers' monthly wage: CLT Article 789. 302 An appeal and a cross-appeal to the TRT5 followed. There Joao and Mesquita received a more sympathetic hearing because of their status as estabilitdrios. According to the TRT5, Judge Vieira had not given sufficient weight to the procedural entitlements of an estabilitario, which placed a high onus on the employer to proceed according to the strict letter of the law. The correct procedure would have been to deal with the issue of insubordination at the time the alleged offence occurred and suspend the workers immediately, pending an administrative inquiry. At a minimum the employer was obliged to advise Joao and Mesquita as to the specific nature of the duties they would be instructed to perform, failing which the regional judges found that they had not abandoned their employment but had merely refused to perform unspecified manual labour.

Perhaps the claimants received a sympathetic hearing at the TRT5 because of the timing of their appeal. The appeal decision was issued in November 1966, only two months after the military regime effectively repealed the notion of estabilidade — as we will see in section 10.3 — which trabalhistas considered a core labour right. Given tensions at the time between trabalhismo and novo trabalhismo over this and other issues, the regional judges may have used this appeal to make a political statement about the importance of estabilidade. In any event, the TRT5 the judges ordered that both Joao and Mesquita receive double severance pay, to which they were entitled as estabilitdrios under the ETR. Their claim for pay in lieu of notice was defeated by a technicality related to the rules of pleading: although they had asserted a claim for pay in lieu of notice in the initial, this claim was not repeated in their appeal brief and accordingly denied. When the file was returned to the junta, Joao collected 525 days pay at the regional minimum wage and Mesquita collected 840 days pay. Mesquita invested his money in a dry goods store in the center of Urucuca which still bears his name.

303 9.4 Enforcement

An important feature of Labour Justice was that it was able to enforce its own judgments and actually assumed responsibility for doing so. While the reluctance of the regional tribunals to enforce their own judgments in dissidios coletivos was a source of frustration for the unions, enforcement by the Vieira court in dissidio individuals was effective to the extent that few judgments remained unsatisfied, although delay in the enforcement process was not uncommon. The contested claims in the execucao (execution) category demonstrate the relative effectiveness of the junta's enforcement proceedings, while the cases examined in this section are representative of how the procedure was carried out by the secretariat. The diligence with which the judge and the secretariat approached the task of enforcement placed the Vieira court in contention with the regional elite and was a major factor in the construction of a new juridical relation between growers and cacao workers. In effect, in enforcement proceedings or execugao (execution), the junta both confirmed its authority and protected labour rights.

Execugao was carried out in the following six sequential steps, up to the point of the judgment being satisfied:

1. The respondent was notified of the judgment.

2. The secretariat calculated the liquid value of the judgment.

3 The secretariat served a writ of summons (mandado de citagdd).

4. The secretariat served a notice of penhora (attachment and/or seizure).

6. The secretariat served notice of sale.

6. The secretariat conducted a public sale.41

41 CLT Article 876 ff 304 At the first step, the respondent was provided with notice of the judgment. A respondent who was present at the hearing was deemed to have notice; however, in the case of revelia, the rules required adherence to the same rules of service that applied to the initial notice of hearing. The date the respondent received notice of judgment was also of significance because the appeal period — ten days, reduced to eight days in 1970 - - ran from that date.

In a typical judgment, damages that were easily quantified were calculated by the judge and set out in the judgment while other sums ~ including inflation adjustment, interest and costs ~ were left to the secretariat to calculate at the next stage of the execution process. The secretariat's final calculation was submitted to the lawyers for review and they had ten days to dispute the amount. For example, in Rosel's case (section 8.7) the ever diligent Antonio Olimpio disputed the calculation on behalf of his client after finding that the chief clerk made a series of errors. He wrote to Judge Vieira to have them corrected. Judge Vieira reviewed the file and ordered a single correction, but Antonio Olimpio was ale to convince the chief clerk to make other corrections which in turn brought the final calculation into line with the judgment.

In Rosel's case the judgment was satisfied forthwith after the calculation was finalized. However, in the event that a judgment remained outstanding, the junta president could advance the process on his own initiative or at the request of the claimant's lawyer. In either event it was the junta president rather than the claimant or her/his lawyer who retained carriage of the execution process, as we saw in section 8.4.

The third step involved serving a writ of summons which required a diligent effort on the part of a justice official to serve the judgment debtor personally, although after two unsuccessful attempts at service the judge could order substituted service by edital, the procedure discussed in section 9.2.42 A writ of summons gave the judgment debtor forty-

CLT Article 880. 305 eight hours to satisfy the judgment or to surrender property for attachment (penhora) of a value sufficient to satisfy the judgment. If the judgment debtor did not comply within this forty-eight hour period the process moved on to the next step, involving penhora (attachment and/or seizure).

Penhora was a process borrowed from civil law, but the rules of penhora for the purpose of Labour Justice were set out in the CLT. Penhora required service of notice by a justice official on the person having ownership or control of the property being attached or seized. The property involved could be either real or personal (immovable or moveable). The seizure, especially in the case of real or immovable property was usually nominal in the sense that the property owner was asked to serve as the depositdrio (bailee) of the property that was subject to penhora. In the event that the owner refused the bailment the judge called on an officer of the civil court, the depositdrio publico (bailiff), to act as depositdrio (bailee), in which case the judgment debtor was liable for his fees as a cost of execution.

The fifth and final step of the execution process was the sale of the property in question, which could be initiated upon twenty days notice to the judgment debtor, who could in turn redeem the property within that time period upon satisfaction in full of the judgment debt, plus interest, court costs, and the costs of execution. Although the judge was reluctant to proceed with a sale if the debtor held out a reasonable prospect of payment, sales of property took place on a regular basis. The first step in the sale was a public offering conducted by the secretariat at the junta office, at a price equal to or in excess of an official evaluation carried out by the depositdrio publico. In the event that there were no purchasers to meet this price the property could be handed over for sale at a public auction.

As may be expected, the penhora system was overwhelmingly successful when the property involved was land suitable for the cultivation of cacao since the value of the

306 land invariably exceeded the amount of the judgment and few growers were prepared to sacrifice the income from their land in order to satisfy a judgment of the modest magnitude of a. junta judgment. However, in the case of Asterio Quirino dos Santos43 the respondent was a small grower who owned nothing of value except his house, which was evaluated on the eve of sale at the equivalent of 437 days pay at the regional minimum wage, which was only twice the value of the judgment. The house was seized and offered for sale but after several attempts over the course of six months there were no buyers. The judge then offered the house to Asterio in satisfaction of his judgment but Asterio declined to take on the liability. When the secretariat finally served notice that the house would go to public auction, the debtor agreed to a series of payments and the judgment was eventually satisfied.

Similar difficulties were encountered when the property was personal or moveable. For example, in the case of Vivaldo Arampos dos Santos and Eudes Pereira da Silva44 the clerk attached a piece of moveable property, which was a chest with a combination lock and a door at the bottom, in "like new" condition, which was evaluated at the equivalent of 116 days pay at the regional minimum wage. The judgment debtor was revel; he ignored the notice of judgment and he ignored the writ of summons, but when he was served with the notice of penhora he retained a lawyer by the name of Asclepiades dos Santos Ramos, to contest the execution process.

Under the CLT,45 embargos (objections) to the execution process were to be filed by way of a petition to the president of the junta within five days from the date of service of the notice of penhora, a time limit which Asclepiades successfully met in this case. However, Asclepiades's embargo petition was in effect an attempt to re-litigate the merits of the claim when his client was not only revel but had also missed the appeal deadline. He seemed to disregard a rule that limited an embargo petition to matters

JCJ 56. See Appendix A JCJ 80. See Appendix A. CLT Article 884 307 related to the execution process. Moreover, although the rules allowed for witnesses to be heard on matters relevant to the embargo petition, Asclepiades requested that Vivaldo and Eudes be re-called so that the statements they made at the original hearing could be challenged. Quite properly the substitute judge dismissed the embargo petition summarily.

Because the decision of the substitute judge was administrative in nature, the TRT5 had jurisdiction to hear Asclepiades's agravo depetigao (motion to quash) alleging procedural unfairness because the judge refused to allow Vivaldo and Eudes to be re­ called. The agravo was dismissed as being devoid of merit, but by then two years had passed since the claim was filed. What is remarkable about this process is that Vivaldo and Eudes were successful at each step of the procedure without the assistance of a lawyer because the secretariat drafted the claim, the hearing was inquisitorial rather than adversarial, and the junta president retained carriage of the execution process.

The next step was for the secretariat to serve notice that the chest would be offered for sale, and a notice to that effect was posted in the junta office. When no purchasers stepped forward, Vivaldo and Eudes were asked to accept the chest in satisfaction of the judgment but they declined. When the judge ordered that it be sold at a public auction, the judgment debtor stepped forward and satisfied the judgment in full.

While Asclepiades abused the embargo and agravo procedures for the purpose of delay, the case of Francisco Aleixo de Santana provides an example of a case in which the same procedures were more appropriately invoked for the purpose of protecting procedural rights, although delay was again the inevitable result. In Francisco's case, as we saw in section 9.2, the judgment debtor blamed his failure to attend the hearing on the secretariat, alleging that the notice of hearing was delivered to the wrong address. When served with the notice of judgment he took no action; when served with the writ of

JCJ 83. See Appendix A 308 summons he volunteered some land for penhora within the forty-eight hour deadline but again took no further action. When served with the notice of penhora, however, his lawyer immediately filed an embargo petition in which he sought to have the proceedings declared a nullity because of default in the service of the original notice of hearing. When confronted with this sharp practice, Antonio Olimpio, acting on behalf of the claimant, argued that the notice issue was not related to the execution process and therefore could not be raised in an embargo petition but rather ought to have been raised in an appeal. The substitute judge rejected this argument and granted the embargo, to which Antonio Olimpio responded by filing an agravo de petigao to the TRT5. The regional judges found that an issue of nullity was a matter of public order (ordem publico), not a private matter between the parties, so the issue can be raised at any time appropriate to the proceedings. A fresh hearing was ordered and after several more procedural manoeuvers, including a further appeal by Antonio Olimpio, a judgment in favour of Francisco was finally satisfied in June 1979, six years after the original claim was filed. For Francisco, the efforts of Antonio Olimpio on his behalf proved to be worthwhile because the value of the judgment when satisfied was the equivalent of 431 days pay at the regional minimum wage.

A comparison between Francisco's case and the case of Vivaldo and Eudes shows that the rules of procedure were double-edged and could be used by either party to advance their own interests, regardless of the impact on substantive labour rights. These cases serve as examples of circumstances in which a concern for procedural fairness undermined the "ideal model" in which a claimant was entitled to an expeditious hearing. The two cases can be contrasted because Vivaldo and Eudes achieved a favourable result without the assistance of a lawyer while it seems evident in Francisco's case that without the contentious performance of Antonio Olimpio his claim would have been lost. In a dissidio individual, it was possible to defend a claim against a contentious respondent by using the junta president and secretariat as "professional proxies" ~ to use Bourdieu's

309 term ~ but when an offensive strategy was required as in Francisco's case, legal representation was a necessity.

9.5 Concluding Chapter 9

In this chapter we saw that the Vieira court was required to overcome various procedural obstacles in order to function expeditiously according to the purpoted "ideal model" which was identified in section 7.2. The service of the originating documents and the conduct of an inquisitorial hearing were not procedurally complicated per se but complications were introduced because the coronets resisted the authority of the junta and under the guise of procedural fairness they attempted to derail the process. The procedural rulings of the Vieira court were coherent because they were applied equally to both contending parties and at the same time fulfilled the purpose of protecting labour rights. Procedural delays were not uncommon, but these delays were attributable to the appeal tribunals rather than to the junta. The CLT provided several obstacles to the filing of a successful appeal but for respondents an appeal was worth attempting because the decisions of the TRT5 were often unpredictable and the appeal judges were not averse to overturning a decision made by Judge Vieira at the junta level. To the extent that the claimants ultimately bore the burden of delay, because delay created pressure to settle and eroded the real value of a judgment, delay worked in favour of the respondents.

Claimants were able to pursue their claims without the assistance of a lawyer in only limited circumstances because the vindication of substantive rights was subject to the complexities of the procedural rules. "Litigation incapacities" were frequent in the sense that claims were often won or lost based on a procedural technicality, which made the quality of legal representation an important factor in the protection of labour rights.

The fear of employer reprisal was well-founded, which made it improbable that a claim could be pursued while the claimant remained in the employ of the respondent. While for some this led to the creation of an "industry of judicial accords", a more 310 injurious effect was that labour rights were commodified: that is, they could not be enjoyed by rural workers during their working lives and instead were assigned a monetary value which was paid to a claimant at the end of the employment relationship. The performance of the Ilheus STR, when it adopted a bureaucratic approach to the settlement of claims, at a discounted rate, without recourse to Labour Justice, may have contributed to the purported "ideal" of expedition but it reinforced this process of commodification.

This chapter also pointed to the relative invisibility of women within the juridical field. The invisibility that was evident in this chapter was culturally-based whereas the invisibility of women in the empreitada was based on the male-to-male form of contract. In one case we saw that "litigation incapacity" caused the labour rights of a woman to be frustrated while in another case we saw that a woman was denied procedural fairness because her rights were subjugated to the rights of her male spouse.

Finally, in contested claims the procedural protections were most rigorously enforced within the execution process in order to protect the property rights of judgment debtors. To this extent the role of the claimant was marginalized in the enforcement process, making execucao (execution) in effect a form of contention between the junta president and the judgment debtor. Within his own contentious repertoire, the president had a key "performance" at his or her disposal — the penhora or the seizure and sale of land — which made it virtually inevitable that, once rendered, a judgment would eventually be satisfied.

311 Chapter 10: Core labour rights

10.1 Introduction to Chapter 10

The procedural issues discussed in Chapter 9 primarily concerned the relation between the junta and the coronets because the Vieira court was confronted with various procedural challenges by respondents who resisted the court's authority. Chapter 10 shifts the focus from the respondents to the claimants and is concerned with the relation between the Vieira court and rural workers. The core labour rights under consideration were an aspect of citizenship for rural workers; their interaction with the junta around these rights bore witness to the trabalhista promise that the state would protect their labour rights.

Chapter 10 is concerned with the substantive issues which confronted the Vieira court and is focused on the protection of core labour rights. The chapter begins with a consideration of the definition of a "rural worker," the platform used by the ETR for the delivery of labour rights. Within the legal form, the juridical relation that the ETR regulated was between a rural worker and a rural employer, which meant that the junta was required to determine the existence of this relation as a threshold issue. This determination involved a "core labour right", that is, the right to formal equality between contending parties, a right which existed only within the legal form. This formal equality allowed a rural worker to assert a claim against a grower within the juridical field, whereas within the social field, actual-existing inequality precluded such claims.

The second core labour right is protection against dismissal without just cause. The notion of just cause protection is embedded in the notion of estabilidade. In section 5.2 we saw that estabilidade originated in 1923 with the Lei Eloi Chaves, and in section 9. 3, that it involved both procedural and substantive rights. In section 10.3 we will see that rural workers enjoyed the rights of estabilidade but that these rights were

312 commodified in the case of rural workers because the protection provided by the ETR was weaker than that of the CLT.

The third core labour right is the minimum wage. One of the substitute judges in the Vieira court reduced the issue of the minimum wage to the following statement:

No salaried rural work can be paid for on a basis inferior to the minimum wage.1

While this was a clear statement of principle it begged the question of what constituted "salaried rural work" and what constituted payment "inferior to the minimum wage"; the former is the threshold issue discussed in section 10.2 while the latter was complicated by the pervasive use of in kind payments of various sorts, in particular through the barracao (fazenda store). Although the barracdo took different forms in different parts of Brazil, one of its consistent features was that it was used to avoid payment of the minimum wage. In the cacao region, growers used the barracao) to pay wages through a truck system, as we will see in section 10.4.

10.2 The centrality of the legal form

The statutory definition of a trabalhador rural (rural worker) bears repeating:

For purposes of this statute, a rural worker is any person who provides services to a rural employer, on a rural property or in a rural setting, through a salary in money or in kind, or partly in kind and partly in money.

1 JCJ 83. See Appendix A 2 ETR, Article 2. The original in Portuguese reads: Trabalhador rural para os efeitos desta lei e toda pessoa fisica que presta servicos a empregador rural, em propriedade rural ou predio nistico, mediante salario em dinheiro ou "in natura" ou parte "in natura" e parte em dinheiro.

313 The relational character of this definition is evident from the inclusion of the phrase "rural employer" within the definition, which the ETR in turn defined as any person (including a corporation) who carries on a rural enterprise.3 The effect of the ETR was to give a legal form to the actual-existing forms of labour control. After the enactment of the ETR, the legal form of "rural worker" was regulated by the totality of norms, rules and procedures that operated within the Vieira court. The first logical step in dealing with the legal form was to determine the threshold issue of whether or not the claimant was a rural worker within the meaning of the ETR. In this section we will consider a few examples of how the Vieira court approached this issue of interpretation.

The first example is the case of Josefa Souza Brito,4 who was the companheira (spouse) of Paulino Ciriaco dos Santos.5 In March 1962, Josefa and Paulino went to live and work on the Fazenda Ipe, in the Municipality of Almadina, which was owned by Osvaldo do Alves de Carvalho.7 According to the criteria established by CEPLAC (see section 2.6), Osvaldo was considered to be a "small grower" because he produced only ten thousand kilos of cacao annually, although his cacao crop was supplemented by a small quantity of manioc and coffee.8 The relation between Osvaldo and Paulino was not at issue: Paulino was an empreiteiro who was contracted to take care of all aspects of Osvaldo's cacao crop, and in general Judge Vieira was prepared to assume that an empreiteiro such as Paulino was a rural worker for purposes of the ETR. The relation between Osvaldo and Josefa, however, was ambiguous because it was mediated by Paulino. Josefa maintained a private plot on which she grew sugar cane, manioc and grains, and, according to Josefa, she worked with Paulino during the cacao harvest.

3 ETR, Article 3 4 JCJ 33. See Appendix A. 5 In the junta file Josefa was described on different occasions as "solteira" (single), a "concubine," living "more uxeris" (in the manner of a wife), or as Paulino's "companheira." 6 The Municipality of Almadina was "emancipated" from Ilheus in 1962. 7 The legal title was held by Josefa Maria de Carvalho and the property was managed jointly until she died in 1965 and left the fazenda to her husband Osvaldo. The coffee plants were managed by a parceiro, and several temporary diaristas were hired for the cacao harvest. 314 During the cacao harvest, Josefa testified, she worked a twelve hour day, six days a week, for which she earned Cr $ 120 per day, which was a fraction of the regional minimum wage. She received her wages from Paulino, who paid her with money he received from Osvaldo.9

Josefa fit the statutory definition of rural worker but the issue Judge Vieira was called upon to decide was whether the respondent Osvaldo was her "rural employer". Josefa likely perceived Osvaldo as her employer because she named him as the respondent in her claim and she told Judge Vieira that she had considered Osvaldo her employer ever since she moved to the fazenda. Although her duty as a rural worker was to be available for work, Josefa's other identities intersected, including her position as a woman within a patriarchal family and her devotion as an Afro-Brazilian to the candomble religion. Her religious devotion led her to be absent from the fazenda for periods of up to two weeks for religious worship at her terreiro (church) in nearby Itabuna. Upon returning home from one such absence in March 1965, Paulino evicted her from their home and threw her belongings into the street, with Osvaldo's assistance. Judge Vieira was called on to decide if it was her relation with Paulino or her relation with Osvaldo (or both) that had been terminated.

In his statement to Judge Vieira, Osvaldo was adamant that Josefa did absolutely no field work, but when his lawyer called Paulino as a witness, Paulino admitted that she worked during the cacao harvest as a diarista as she had stated in her claim. This was enough for Judge Vieira to make his decision and he refused to hear from any other witness. According to Judge Vieira, Osvaldo was Josefa's "rural employer" because the cacao enterprise was his rather than Paulino's. This can be contrasted to the opinion of the Procurador Adjunto in Josefa's case — after Osvaldo filed an appeal -- for whom the issue was one of privity of contract. According to the procurador.

9 Josefa describe! her work on the fazenda as follows: ...banderar e quebrar a cacau, limpa de mandioca, apanhar cafe (pile up and break open the cacao pods, clean the mandioc, gather coffee). 315 It is not enough only to carry out the work, but it is essential and indispensable that each one of the parties know with whom they have contracted, what terms and conditions are in place and what obligations they have taken on.10

The TRT5 dismissed Osvaldo's appeal as untimely and left the issue of what was the correct legal test undecided. In terms of the equities of the case, the procurador was probably correct in thinking that Osvaldo did not realize the extent of his obligation towards Josefa when he allowed her to work in the cacao harvest but the purpose of enshrining labour rights in the ETR was to ensure that a rural worker's rights were protected despite any agreement to the contrary, especially in view of the social inequality between growers and workers. Judge Vieira saw that human labour was the decisive factor in the cacao harvest and his view was that labour rights should be protected whenever human labour was used by a rural employer.

The implications of the legal test proposed by the procurador were far reaching for women working in cacao because it implied that only the male empreiteiro was a rural worker. Women like Josefa who worked on an empreito had no contractual relation with the male grower because the culture of patriarchy made the empreiteiro a male-to- male relation. Osvaldo's lawyer argued that cacao growers did not hire women because they were weaker than men; here is Judge Vieira's response:

The employment of women fieldworkers, especially in the processing, gathering and harvesting of cacao has been a constant feature in the region. This question of their physical strength being inferior to that of men is entirely relative when it comes to field work. We have heard flattering references to the efficiency of the efforts of members of the so- called weaker sex when doing the work of peasants. On the other hand, the fact that the claimant was the "concubine" of the male contractor does not

JCJ 33 . See Appendix A. The original in Portuguese reads: Nao basta apenas a execucao de trabalho, mas e essential e imprescindivel que saibam, uma e outra parte, com quem contratou, que condicoes reunam e as obrigacoes que os prendem. 1' The appeal was dismissed because it was filed one day late. The opinion of the procurador was that Osvaldo had been denied a fair hearing because Judge Vieira closed off his defence ("cerceamento de defesa") when he refused to hear all of Osvaldo's witnesses. 316 negate but rather reinforces that she worked on the cacao fazenda. It is entirely common, on rural properties that the entire family works for the same employer.

The result in Josefa's case was that in May 1967 she a received a payment which topped up her wages to the regional minimum wage for her entire period of employment (March 1962 to March 1965), which was the equivalent of 168 days pay at the regional minimum wage. When Judge Vieira later reached the TRT5 he had occasion to articulate more clearly his reason for finding that women in Josefa's situation fell within the ETR definition of rural worker. Using an "organizational test" for determining the existence of an employment relation, he wrote:

What is important is the determination that the work of the claimants is for the advantage of the employer and is intimately connected to the goals of the enterprise. We are dealing with a cacao fazenda where human labour is the decisive factor in the economic and financial success of the agricultural undertaking.

We saw in section 2.6 that there was a relation between the patriarchal family and forms of labour control such as the empreitada and we saw later in section 7.5 that by contracting with the head of a patriarchal family a grower was able to take advantage of the cheap labour of women. Judge Vieira's approach to women as workers had the potential of undermining this advantage. In the case of Darci Ribeiro da Silva and Valdeci Batista dos Santos, Valdeci worked interchangeably as a diarista and on an

JCJ 33. See Appendix A. The original in Portuguese reads: O desempenho da mulher nos servicos de rocas, especialmente, na quebra, embandeiramento e colheta do teobroma tern sido um constantena na regiao. Essa questao de forca fisica inferior a do homem, no ambito do campo, e algo mui relative Temos ouvido referenda lisongeira a eficiencia dos prestimos das pessoas do sexe, dito fragil, na labuta campesina. Por outro lado, a mancebia da reclamante com o "empreiteiro" do reclamado nao a impediu, antes concorreu, para que trabalhasse na fazenda. E tao comum uma familia inteira trabalhar, nas propriedades rurais, para o mesmo um mesmo [sic] empregador. 13 JCJ 78. See Appendix A. The original in Portuguese reads: O importante e a constatacao do trabalho das queixosas em proveito do empregador, ligado, intimamente, aos fins do empredimento. Trata-se de fazenda de cacau, onde a labor humano e fator decisivo no sucesso economico-financeiro da exploracao agricola. 14 JCJ 78 . See Appendix A 317 empreito with her companheiro at the same fazenda for ten years, during which time she had eight children. Acting on behalf of the respondent rural employer, Antonio Olimpio produced payroll records to show that Valdeci's employment history lacked continuity and argued that the gaps were caused by childbirth. Judge Vieira took the contrary view and ruled that the payroll records were incomplete because they did not reflect the time Valdeci worked on her husband's empreito. As for the issue of childbirth, Judge Vieira accepted Valdeci statement that she took no more than one month to forty-five days for each birth:

As is public knowledge and a notorious fact, the children of the poor do not prevent them from going to work. The children of the poor are not raised by their parents, they raise themselves.15

Women who worked on an empreito within the structure of the patriarchal family were effectively invisible for purposes of work records. This issue of invisibility increased in importance after 1971 when a previdencia (social assistance) system for rural workers was introduced pursuant to the military's agrarian policy, because eligibility for benefits was based on the length of employment.16 Increasingly the junta was asked to update a claimant's carteira pofissional (workbook) for this purpose. In the case of Diva Soares de Almeida, after almost ten years working on the same fazenda, Diva broke her arm in a work accident and asked the administrador to update her carteira so she could claim benefits; he rebuffed her request and threatened that she

15 The original in Portuguese reads: Como e publico e notorio, filhos de pobre nao o impedem de trabalhar. Eles se criam, nao sao criados. 16 The previdencia system for rural workers was known as FUNRURAL, which was administered by I API until 1971. In 1966, IAPI was instructed to provide medical care: Portaria no.385 de 25 de Maio de 1966. Under the ETR, a woman's wages were to be paid out of FUNRURAL during her maternity leave, but few if any such wages were paid prior to 1971 due to underfunding: Adriano Campanhole, Legislacao do trabalho rural e Estatuto da Terra. (Sao Paulo: Editora Atlas S.A., 1966), page 88. 17 Ana Maria Bianchi dos Reis, Diagnostico Socio-Economico da Regiao Cacaueira: Mao-de-obra e elementos de relacoes de producao (Ilheus: CEPLAC, 1976). The junta was able to remedy the problem by instructing its secretariat to update a worker's carteira after the expiry of the appeal period: JCJ 36: See Appendix A 18 JCJ 16 and 19. See Appendix A 318 and her husband would both be terminated if she persisted. Again acting for the rural employer, Antonio Olimpio argued that Diva was a sub-contactor working for her husband, who was an empreiteiro, although he later changed his tune and acknowledged Diva's employment status as a term of settlement; her carteira was updated accordingly.

The CLT regime, including the ETR, provided that any arrangement entered into for the purpose of avoiding labour rights was deemed to be null and void. This formally prevented rural workers from being contracted out of their labour rights and prevented growers from constructing forms of labour control for the purpose of avoiding their statutory obligations. Nonetheless, we have seen so far in this section that the empreitada had this potential and, in section 4.2, that even within the agrarian social movement the employment status of parceiros (sharecroppers) was open to debate. This debate carried over into the juridical field where the notion of a '"''falsa (false) parceria" was used to distinguish a relation regulated by the ETR from a "true parceria" relation that was regulated by the Civil Code. According to Segadas Vianna, the distinction was that a "true parceria" contract was between partners while a "falsa parceria" reflected the subordination that characterized an employment contract.20

Although parceria contracts were common throughout much of rural Brazil they were rare in the cacao region because they were not suited to the mode of production. The case of Floriano Ferreira Silva21 was one of the last contested claims that Judge Vieira heard before leaving the Ilheusy'wMta in 1972. Floriano had a complex relation with Willy Hermano Spiegelberg, a rural employer who administered his father's estate

19 CLT Article 9; ETR Articles 1 and 70 20 Segadas Vianna, O Estatuto do Trabalhador Rural e sua Aplicacao (Comentarios a lei no. 4.214 de 2 de Marco de 1963). (Sao Paulo: Livraria Freitas Bastos S.A., 1965), page 58. He wrote: ... it is necessary to distinguish between a "true parceria" and a "falsa parceria" which is no more than an employment contract with remuneration which is variable and "in natura" (in kind). The original in Portuguese reads: ...e necessario distinguir entre a verdadeira parceria e a 'falsa parceria', que nada mais e do que um contrato de trabalho com remunercao variavel e 'in natura' 21 JCJ 54. See Appendix A 319 from his home in the District of Ferradas in the Municipality of Itabuna. The relation began in 1963 and ended in 1972 when Willy relieved Floriano of his duties and advised him to "tomasse suas providencias" (do what you have to do), which Floriano took to mean that he was fired.

At one point in their relationship, Willy and Floriano entered into a parceria contract for a period of two years. A parceria contract was feasible because Floriano worked on the Fazenda Pindorama in Municipality of Una, which was a large plantation

99 of piacava, a crop that was grown on land not suited for the growing of cacao. The terms of the parceiro contract required Floriano to hire and supervise a team of diaristas for the harvest and to deliver the crop to the office of a commercial house, Srs. Freitas & Cia., in Canavieiras. Although Floriano was entitled to half the proceeds of sale, he had no relation with the commercial house except through Willy, and no opportunity to seek a better price elsewhere. At the end of the season he found himself in debt to Willy for the food he had purchased on credit at Willy's barracdo. Although Floriano had previously addressed Willy as a respected friend, they had a falling out over the accounts, which is what brought the relation to an end.

Floriano's claim was heard by Judge Vieira on May 30, 1972. Although the parceria contract was only one of several legal issues in dispute, its significance was that, if Judge Vieira found it to be a falsa parceria, Floriano could establish a continuous history of employment with Willy of almost ten years and could claim double severance pay, as we will see in section 10.3. Floriano's lawyer argued that the parceria contract was "a clear and undeniable mockery of the labour legislation" (uma burla clara e insofismavel a legislacao trabalhista). Judge Vieira agreed, declaring this to be a case of falsa parceria in which the contract was "still born" (nati-morta) or void ab initio.)

Piacava is a type of palm tree native to the Mata Atlantica (Atlantic Forest) which was used to produce straw for brooms and other household uses. 320 For Judge Vieira the critical issue was subordination. He found that Floriano was subordinate to Willy in the parceria relation because the crop had to be sold to Willy's chosen commercial agent, rather than on the open market. Because of this subordination, Floriano had no opportunity to increase his profit margin and, indeed, no way of knowing if the relation between Willy and the commercial house was at arm's length. After an appeal and a cross appeal and an embargo petition with respect to the execution proceedings, the judgment was satisfied in June 1974, two years after the original hearing.

Floriano's pattern of employment shows that interchangeability in grower-worker relations presented some difficult interpretational issues within the juridical field because labour rights often depended on continuity of employment. For some judges continuity depended on being employed on the same fazenda or within the same conjunta of fazendas while for others the relation was personal, between the rural worker and the person who was rural employer. In one case a worker was fired from a fazenda; when he filed a claim, the same employer hired him on a different fazenda in order to limit his liability. Sitting as the suplente judge, Nilo Cardoso decided that in agriculture the employment relation was tied to a specific physical location, the fazenda, so there was a break in the employment relation even though at the time of the hearing the claimant was still working for the original employer.23 In general, however, the junta rarely allowed the problem of identifying the rural employer to undermine the protection of labour rights, although continuity remained a perplexing issue.

In the case of Raimundo de Oliveira Filho,24 Judge Vieira revisited the issue of identifying the rural employer when the Kaufmans ~ one of the coronel families featured in section 2.3 — attempted to hide behind a corporate entity to deny Raimundo his labour rights. We have seen that the Kaufmans were involved in the growing,

JCJ 46. See Appendix A JCJ 47. See Appendix A 321 commercialization and processing of cacao. They grew cacao at the Fazenda Vitoria ~ referred to as the "Condominio Sesmaria Vitoria," a reference to the fact that it belonged to the undivided estate of the family patriarch, Hugo Kaufman — where Hugo Kaufman Junior was the administrador. The estate was also the majority shareholder in the corporate entity known as Cacau Industria e Comercial S.A., of which Hugo Jr.'s brother, Simon Kaufman, was President and CEO {Diretor-Presidente). As had been the case since the Old Republic, the business of the Kaufman family was closely linked to the Sa family and in 1965 their legal work was in the hands of two bachareis from the Sa family, Tacito de Sa Bittencourt Camara and his son Clovis de Sa Bittencourt Camara.

Raimundo was fired on April 3, 1965, and filed a claim at the junta three weeks later. When Judge Vieira convened a hearing on May 25, 1965, Raimundo was represented by Antonio Olimpio. The respondent did not appear so Judge Vieira declared a revelia and issued a judgment in Raimundo's favour after a brief hearing. As an empreiteiro on the Fazenda Vitoria, Raimundo had no difficulty establishing that he was a rural worker; the issue in the case was to identify the rural employer. Simon Kaufman was served with notice of the judgment and Clovis de Sa Bittencourt Camara filed an appeal on behalf of the CIC (Cacau Industria e Comercial S.A.). The problem was that Antonio Olimpio's office had named the corporation as the respondent, which Clovis argued was neither Raimundo's employer nor a rural employer within the meaning of the ETR:

CIC is dedicated exclusively to the commercialization and industrialization of cacao, that is, the purchase of cacao in bulk and its industrialization into sub-products, that is, cacao "milk", chocolate bars and chocolate powder...

The original in Portuguese reads: CIC dedica-se unica e exclusivamente ao comercio e industrializacao de cacau, isto e, a compra de cacau em bagas e a sua industrializacao em sub-productos, como seja, manteica de cacau, torta de cacau e po de chocolate... 322 Clovis filed payroll records (folhas de pagamento) to show that Raimundo was employed by the condominio and not by the corporation and he filed a receipt for municipal taxes which Hugo Kaufman Junior had paid on behalf of the condominio. Clovis argued that the proceedings were a nullity because

... there exists no connection whatsoever between the respondent CIC and the named condominium.26

According to the appeal judges on the TRT5, this argument could not be raised on appeal because the identity of the employer was an issue of fact to be dealt with in the first instance, and when the revelia was declared the corporation was deemed to have admitted this fact (confissao ficta). The appeal judges also commented on the issue of whether the corporation and condominio were jointly liable as "related employers" within the meaning of the ETR. Although not required to decide this issue, the judges noted wryly that the written retainer filed by Clovis and the payroll records signed on behalf of the condominio both bore the family name of Kaufman , suggesting that the family connection may have been sufficient to determine the related employer issue. Raimundo died before the appeal was decided, although his indigent widow eventually collected on

98 the judgment, with the assistance of Antonio Olimpio.

10.3 Just cause protection

This discussion of just cause protection begins by showing how this core labour right was embedded in the notion of estabilidade (job security or stability). We saw in

The original in Portuguese reads: ...nao existe qualquer ligacao entre a Recorrente [ie CIC] e o mencionado Condominio... 27 CLT Article 2; ETR Article 3. 28 Raimundo died while waiting for the appeal to be decided, on November 1, 1965, at the age of 32, of an unknown cause. When informed of his death, Clovis lost little time grieving. He immediately forwarded a copy of the death certificate to Judge Vieira and argued that as a result of the death the entire proceedings were a nullity. Antonio Olimpio took up the cause of Raimundo's widow and through a valiant legal effort successfully advanced her claim to the judgment.

323 Chapter 5 that estabilidade originated in the Lei Eloi Chaves and was extended to workers in commerce and industry through the Lei de Despedida (Law of Discharge) in 1935.30 With the enactment of the CLT in 1943, the trabalhistas made estabilidade a core labour right for all workers in the formal economy; with the enactment of the ETR in 1963, it became a core labour right for rural workers as well. In section 9.3 we saw that an estabilitdrio enjoyed procedural protection while at work and the right to remain employed until just cause was proven in administrative inquiry (inquerito administrativo). However, the estabilidade of rural workers was undermined by shortcomings in the ETR and the estabilidade of the CLT regime itself was ultimately destroyed by the novo trabalhismo of the military regime. This section compares the estabilidade of the CLT to the version enacted by the ETR to show how it was undermined and destroyed, and it considers how the substantive right of just cause protection was interpreted in the Vieira court.

Under the CLT, an estabilitdrio was defined as a worker with over ten years of service with the same employer. A worker with less than ten years of service also enjoyed just cause protection but could be terminated without just cause upon payment of severance pay {indenizacao de antiguidade) at the rate of one month per year of service. A worker with less than a year of service was treated as probationary with access neither to just cause protection nor to severance pay. In two circumstances workers terminated without just cause were entitled to enhanced severance payments. The first was when a worker at the portal {no limiaf) of estabilidade was terminated for the purpose of avoiding estabilidade, a frequent occurrence which some opponents of estabilidade advocated as a mechanism of labour control. The second was when a judge determined that, despite the absence of just cause, an estabilitdrio would not be reinstated because the employment relationship was irreparable. In both circumstances the worker was entitled to double their normal severance pay.

Lei 4.682 de 24 de Janeiro de 1923. Lei 62 de 5 de Junho de 1935. 324 In 1946, the constitution of the Fourth republic made estabilidade the constitutional right of all workers, including rural workers, although this right was not implemented for rural workers until the enactment of the ETR in 1963. The ETR version of estabilidade undermined the scheme of the CLT regime by modifying one crucial rule: rather than the judge deciding that double severance should be ordered instead of a return to work, this decision was given over to the rural employer who, in effect, could terminate an estabilitdrio at any time upon payment of double severance. This provision was ridiculed by Segadas Vianna as a mockery of estabilidade, while at the same time he admitted that the CLT form of estabilidade was unenforceable in rural Brazil:

Who would guarantee the life of this worker in a region where the local police are virtually chosen by the large landowners?31

As an author of the CLT and as a former Minister of Labour, Segadas Vianna suggested that enforcing estabilidade would put the life of the rural worker in danger. As an elite trabalhista of the dddiva (gift) school, Segadas Vianna argued that it would be better to leave the 1946 constitution unfulfilled than to reduce estabilidade to a legal fiction (ficcao juridical):

...to mock the principle of estabilidade is to negate the constitutional protection while to establish genuine estabilidade in rural employment would be to condemn the worker to death.

A move to abandon estabilidade was instigated by foreign investors who were concerned about the ability to engage in a mass lay off, a right which was taken for granted in regimes of industrial pluralism such as those existing at the time in the U.S. and Canada. According to a study conducted by Lincoln Gordon, estabilidade enjoyed a

31 Segadas Vianna, op.cit., fn 20, page 211 32 IBID, page 212 The study is referred to by Antonio Luigi Negro in Linhas de montagem : o industrialismo nacional- desenvolvimentista e a sindicalizacao dos trabalhadores (1945-1978), (Sao Paulo SP: FAPESP : Boitempo Editorial, 2004), at page 127. It is cited as Gordon, Linoln; Grommers, Engelbert US Manufacturing in Brazil. The Impact of Brazilian Government Policies. 1946-1960 (Boston, Harvard University, 1962). 325 "particularly disfavourable reputation" among employers, both because of the procedural protections and because of an employer's unfunded liability for severance pay. Within the employer community, some employers terminated every worker at the portal of estabilidade while others preferred a selective culling of "undesirables".34 Their desire to cull undesirables became more urgent during the Fourth Republic when the unions deployed estabilitdrios to advance the union agenda because they were relatively immune from employer reprisal,35 although some labour judges were said to be "more realistic" and prepared to uphold the termination of estabilitdrios, including "among them, the union activists".

In 1966 Castelo Branco amended the constitution and replaced estabilidade with the FGTS (Fundo de Guarantia de Tempo do Servigo or Guarantee Fund for Time of Service).37 Erickson correctly referred to the FGTS as a system of forced savings: employers were required to deposit the equivalent of 8% of each worker's annual salary into an account which the worker could access if terminated without just cause or if he or she quit voluntarily and wanted to start a business or had other urgent needs. In one stroke the procedural protections were eliminated and the unfunded liability problem was "solved". In addition, the effective repeal of estabilidade insulated employers from claims for other labour rights because estabilitdrios were no longer protected from employer reprisal:

... nobody approached Labour Justice as an employee after estabilidade was removed. Perhaps this form of absolute job security was harmful or

Gordon later became the U.S. Ambassador to Brazil and, as ambassador, provided support to the coup leaders in 1964. 34 Kenneth Paul Erickson, The Brazilian corporative state and working-class politics (Berkeley: University of California Press, 1977), page 166 35 The CLT protected union leaders from termination from the time they filed their candidacy to the time they left office. 36 Negro, op.cit., fn 33, page 127 37 Lei No. 5.107 de 13 de Setembro de 1966. Rural workers were excluded from the FGTS until 1988. A worker who was already an estabilitario could maintain his status and workers had the formal option to choose the FGTS or estabilidade, although in practice those who chose estabilidade were terminated or not hired. 326 anesthetizing but it was replaced by no job security at all, making it unviable, in practice, for workers to file claims against their employers.

Rural workers were excluded from the FGTS until 1988 when the new constitution granted them equal rights with their urban counterparts. The guaranteed severance payment provided under the FGTS was received by rural workers as a benefit because the estabilidade provided by the ETR and its successor legislation had always been a legal fiction.

Nonetheless the modified form of estabilidade in the ETR had not been entirely illusory. The case of Abilio Agnelo da Silva shows that just cause protection had been a benefit to rural workers in some circumstances. Abilio was born in the Bahian sertao and arrived in the cacao region in 1935, when he and his family began a complex relation with the Pavoas, a novo rico family that dominated the District of Uniao Queimada, in the Municipality of Itajuipe. Otavio Portela Pavoas and his wife Cresus Portela Povoas owned five fazendas in the district, including the Fazenda Sao Joao where Abilio had worked for most of his career and was working at the time he filed his claim. Otavio and Cresus were large growers because Sao Joao alone had 135 hectares under cultivation to cacao (see section 2.5, fn 89). They had seven sons and two daughters and after Otavio died in 1949 and Cresus died in 1955, the estate was divided into nine parcels. Pending division, the estate as a whole was administered by the eldest son, Otavinho (Little Otavio), while another son, Felinho, became the administrador of the condominio of fazendas.

Carlos Eduardo Bosisio, "O declinio do sindicalismo corporativo," in Angela Maria de Castro Gomes and Amaury de Sousa, Trabalho e previdencia : sessenta anos em debate (Rio de Janeiro: Editora de Fundacao Getulio Vargas : CPDOC, 1992), page 52. The original in Portuguese reads: ... ninguem se aproximava da Justica do Trabalho como empregado, pois a estabilidade tinha sido afastado. Aquela estabilidade absoluta, talvez nociva, que anestesiava, tinha sido substituida por estabilidade nenhuma, o que tornava inviavel, na practica, a reclamacao de trabalhadores contra seus empregadores. 39 JCJ 85. See Appendix A 327 Abilio had started work as an agregado in 1935, a form of labour control that had all but disappeared by the time of the Vieira court. As an agregado his expectation had been to remain on the fazenda for his lifetime. However, his agregado relation had been with Otavio, the father, and by the time the sons took over the relation had changed. Abilio had also worked for a short period as a contratista — another form of labour control that had all but disappeared by the time of the Vieira court. His contratista relation had been with Felinho: in July 1953 Abilio and four colleagues entered into a locacao de servigos contract with Felinho — which was registered in the local cartorio — to clear and plant a plot of land which Felinho owned in his personal capacity. Although it was beyond dispute that Abilio had been employed in the family undertaking for well over ten years, and was therefore an estabilitdrio, this contract with Felinho gave rise to an issue of continuity in Abilio's employment history. A second issue of continuity arose out of the settlement of the estate because Otavinho's share consisted of part but not all of the Fazenda Sao Joao (where Abilio had worked). At issue was whether the employment relation was tied to the fazenda or to the person of Otavinho, who owned the fazenda at the time of the claim. A third issue of continuity arose because Abilio had taken ill and had returned home to the dry sertao to recover, making him unavailable for work for a period of sixteen months from 1960 to 1962.

Otavinho had no desire to live in Uniao Queimada so when the estate was settled he promoted Joao Cerqueira Campos, a rural worker who had arrived on the fazenda as a child, to the position of administrador. This complicated the relation between Abilio and Otavinho because Joao was married to Abilio's daughter. When Abilio returned from the sertao in 1962 he was still quite ill but Joao took him in and allowed him to return to work as a diarista, paid at the rate of Cr $ 700 per day when the regional minimum wage was Cr $ 1.100. From January to June 1965 Abilio was only able to work a day and a half due to illness and was left destitute, without money to pay for medication. In desperation, Abilio abandoned the fazenda and sought legal assistance in the nearby town of Coaraci where a local lawyer, Hamilton Henrique Santos, took on his case and filed a claim in the 328 Ilheus junta on June 26, 1965. In the initial, Hamilton named Otavinho as the respondent and wrote that Abilio suffered

...the worst privations that a human being could survive without the respondent giving any acknowledgement to thirty years of uninterrupted work and prosperity that the claimant provided to the respondent and his father, helping them to become richer and richer while the claimant became poorer and more miserable, living at present from alms and the compassion of people with a good heart.

Abilio had not been terminated so Hamilton framed the claim around the notion of constructive dismissal (dispensa indireta), which was a fairly novel concept at the time and problematic in the case of an estabilitdrio because termination could only be effected after an administrative inquiry. Furthermore, the fact that Abilio abandoned the fazenda was an issue because an abandonment that lasted for over thirty days constituted just cause for termination unless the abandonment was itself for just cause.40

Abilio appeared before Judge Vieira on July 27, 1965 as a walking corpse. Pina portrayed Otavinho as the only one of the siblings who took pity on Abilio but Judge Vieira was outraged that Abilio was left without medical attention. Judge Vieira urged Otavinho to reinstate Abilio on the fazenda and was frustrated at Otavinho's refusal...

... before the aspect, truly shocking, presented by the worker, who more appeared and continues to look like a caricature of a sick person. This was unnecessary, since he never received any assistance from the employer who never contributed to the IAPI [previdencia or social assistance] and never paid him his proper salary.

Judge Vieira ruled that Abilio's claim of constructive dismissal was untenable because he was an estabilitdrio and that he was not entitled to notice of termination in the circumstances. However, because the employment relation was irreparable in the circumstances, Judge Vieira awarded Abilio double severance pay.41 According to Judge

40 ETR Article 86 41 ETR Article 97 329 Vieira, Abilio had twenty-nine years of service, which entitled him to fifty-eight months wages — 1766 days pay ~ at the regional minimum wage.

As may have been expected, Pina appealed to the TRT5, raising the continuity issues to challenge the length of service and arguing that the liability should be shared by all of the siblings and not born by Otavinho alone. The TRT5 judges ruled that Otavinho was personally liable only for the years of service accumulated since the settlement of the estate in 1958 when he became the sole owner of Sao Joao. The appeal judges accepted that the estate was liable for the years of service prior to 1958, but according to the Civil Code, as one of several heirs, Otavinho was responsible only in proportion to his share of the estate.42 Although Otavinho was severally liable for the years 1935 to 1958 the appeal judges thought it was inequitable to make an award against Otavinho for his share when his siblings were not parties to the proceedings. These may have been the equities of estate law but Abilio was effectively deprived of his remedy in defiance of the equities of labour rights. Although the ETR made successor employers liable for the obligations of their predecessor, the appeal judges ruled that the statutory language applied only in the event of a sale and not of an inheritance. The final result was that Abilio's length of service was reduced to six years, and to make matters worse he was no longer an estabilitario because he now had less than ten years of service with the same employer. His severance pay was no longer doubled, and in the end he collected the equivalent of only two hundred twenty days pay at the regional minimum wage.

Abandonment of employment was only one of several forms of misconduct that the ETR enumerated as grounds for dismissal. The employer bore both the burden of proving the misconduct and the burden of showing that the misconduct fit within one of the enumerated grounds. A single act was often deemed insufficient to constitute

Article 144 of the Civil Code read: O herdeiro so responde pelas obrigacoes em proporcao ao seu quinhao. 330 grounds for termination; for example, with reference to insubordination, the enumerated ground read as follows:

... repeated acts of indiscipline or insubordination.43

In the case of Raimundo Costa Alencar,44 who was not an estabilitdrio, the employer was unable to discharge its burden because Raimundo had committed only a single offence of drunkenness in his off-duty hours, while the statute specified that dismissal was justified only in cases involving

... habitual drunkenness or drunkenness while at work ... 45

While in Raimundo's case his drunkenness was not habitual and did not occur at work, Raimundo had both insulted and assaulted the administrador. Consequently, Nilo Pinto — acting for the employer ~ invoked alternative grounds, citing statutory language that authorized dismissal in cases involving

(b)... immoderate conduct or bad procedure46

(h) ... an act carried out while at work which injures the honour and reputation of any person, or a physical attack carried out under the same conditions...47

However, because the misconduct did not occur while Raimundo was at work, the judge was able to convince the employer to settle the claim in conciliation once the evidence had been heard.

43 ETR Article 86 (f) which reads: f) ato reiterado de indisciplina ou insubordinacao. 44JCJ13. See Appendix A 45 ERT Aricle 86 (e) which read: e) Embriaguez habitual ou em servico 46 ETR Article 86 (b) which read: b)incontinencia de conduta ou mau procedimento 47 ETR Article 86 (h) . The section read: h) ato lesivo da honra ou da boa fama , praticado no servico, contra qualquer pessoa, ou ofensa fisica , nas mesmas condicoes... 331 We saw in the case of Antonio and Anitia Botelho (section 9.3) that employer reprisal was a disincentive for workers who sought to assert their labour rights while they were still employed. While sitting as a substitute judge on the TRT5, Judge Vieira heard an appeal case from the llheus junta in which all three of the claimant's witnesses had been fired by the same employer. Acting for the employer in this case, Antonio Olimpio argued that this placed the credibility of the witnesses at issue because they all had claims pending against the respondent, to which Judge Vieira responded:

But this circumstance [i.e. that they had all been terminated] instead of bringing discredit to their evidence is more indicative of an obvious attempt to put economic pressure on rural workers who dared to speak out against the interests of the landowner.48

We can conclude, then, that just cause protection under the ETR was generally ineffective in deterring employer reprisals. In Diva's case (section 10.2), she retuned to work after a conciliated settlement which recognized that she was at the portal of estabilidade, but this was not sufficient to protect her from reprisal. Although she formally remained an employee, the administrador simply refused to assign her work, and as an empreiteira and a diarista she was entitled to be paid only when she worked. This was also the case with Abilio even when he was thought to be an estabilitdrio. An estabilitdrio who worked as an assalariado and was paid by the month could expect to have his or her wages continued for as long as he or she was available for work but estabilidade did not protect the wages of an empreiteiro or diarista except when they were actually working.

JCJ 78 . See Appendix A. The original in Portuguese reads: Mas essa circumstancia, ao inves de pesar desfavoravelemente, antes indica um modo indisfarcavel de pressao economica sobre aqueles ruricolas que falariam contra os interesses do patrao. ETR Article 7 332 Judge Vieira was confronted with the issue of employer reprisal in the case of Laudelino Jose dos Santos and Cosme Agenor dos Santos.50 Laudelino and Cosme were estabilitdrios51 who lived in two small houses with their five children on the Fazenda Bonfim, on the road between Ilheus and Itabuna. The houses were located at the sede (headquarters) of the fazenda where there was electricity, running water, a school, easy access to both cities, and a stream teaming with fish. For this housing Laudelino and Cosme each paid rent at the rate of 20% of their wages. One day in March 1965 the administrador, Oseas Santos, instructed Laudelino and Cosme to move their family to Pirineus, an isolated location in the interior of the fazenda about six kilometers from the sede, because there was no work for them near the sede. Oseas's motive was unclear but perhaps he anticipated that he could house a separate family in each of the two houses that Laudelino and Cosme occupied at the sede. Laudelino and Cosme refused to relocate, to which Oseas reacted by accusing them of insubordination, issuing them a written order, and refusing to assign them work or pay their wages until they agreed to relocate. The non-payment of wages was improper because Laudelino and Cosme were assalariados, paid by the month, and they remained available for work.

Laudelino and Cosme concluded that this was a ruse (artificio) to force them to resign because as estabilitdrios they were entitled to double severance pay if terminated without just cause. Rather than resign, they retained Paulo Cardoso Pinto to file a claim at the junta on their behalf. Cardoso framed the claim in the alternative: either order the payment of back wages in double — because they were incontrovertible ~ or rescind the employment contract and order that severance be paid in double. Judge Vieira encouraged a conciliated settlement but Oseas insisted on relocation, causing Judge Vieira to conclude that the employer's motive was suspect. He declared that Laudelino and Cosme could not be forced to relocate because they were paying rent for their

50 JCJ 82. See Appendix A 51 Laudelino was an estabilitario while Cosme was at the portal (limiar) of estabilidade, only 5 months short of the required ten years of service. 333 housing and he ordered payment of their back wages because they were available for work, although he declined to order that wages be paid in double. However, Oseas remained adamant and continued in his refusal to assign them work or pay their wages, leaving the family to survive on fish from the stream and the charity of the other workers.

Both parties appealed to the TRT5. In his appeal pleadings, Cardoso was harshly critical of Judge Vieira's decision not to rescind the employment contract because Laudelino and Cosme returned to working conditions which he compared to the galley (gale), in reference to a form of punishment to which slaves were subjected before abolition. Judge Vieira took offence and retorted that Cardoso had only pleaded rescission in the alternative. In a statement against the commodification of estabilidade, Judge Vieira declared that "it made more sense from a social and human perspective that the employment relation be maintained". Judge Vieira submitted that the claimants were free to quit their jobs at any time so their situation could not be likened to enslavement. In fact, rather than being held in the galley, Laudelino and Cosme were engaged in contention over their right to double severance.

Cardoso's appeal brief reflected his frustration over the inability of Labour Justice to protect workers against reprisal. He submitted that the universal experience of labour lawyers was that when a request by an estabilitdrio for rescission was denied, the inevitable result was that the employer harassed the worker in an effort to force him to resign, which was precisely what was happening at the time to Laudelino and Cosme. In the final result, the TRT5 upheld Judge Vieira's decision and added a note to clarify that his order for the payment of wages was prospective and not merely retroactive. Consequently, Laudelino and Cosme were entitled to be paid their monthly salary until they quit or were terminated for just cause. While there was no statutory norm in the field of labour law that protected their right to remain housed on the sede, the effect of Judge

JCJ 82. See Appendix A. The original in Portuguese reads: ... e de melhor sentido social e humano seja mantido a relacao de emprego. 334 Vieira's decision was to create a right out of what was previously considered to be a privilege which workers enjoyed at the sufferance of the landowner.

10.4 The minimum wage

The case of Laudelino and Cosme shows that the benefits that rural workers accrued as assalariados living on the fazenda could include food, housing, and even schooling for their children, although increasingly rural workers preferred to live in town in order to escape the coronel's domination of their social life.54 Whether living on or off the fazenda, however, cacao workers sought to be paid the regional minimum wage, the core labour right discussed in this section.

The minimum wage was introduced with fanfare by President Vargas on May 1, 1940, after several years of failed promises, and it soon became a central tenet of the dddiva theory.55 Rural workers were formally entitled to the minimum wage from the beginning and this entitlement was confirmed by the CLT and re-confirmed by the 1946 constitution. But although the trabalhistas touted the minimum wage as a core labour right, it remained a legal fiction for rural workers. After the enactment of the ETR in 1963, and the expansion of Labour Justice into rural Brazil, the rural unions acquired the dissidio individual as a form of contention. Had the military not intervened, the agrarian social movement would have had the legal and social capacity it required to bring about enhanced, if not universal, compliance with the minimum wage law.

The migration of workers off the land and into town has been studied extensively in Pernambuco: Afranio Raul Garcia Junior, O sul. caminho do rocado : estrategias de reproducao camponesa e transformacao social (Sao Paulo; Brasilia, Distrito Federal: Editora Marco Zero; Editora Universidade de Brasilia, em co-edicao com o MCT-CNPq, Conselho Nacional de Desenvolvimento Cientifico e Tecnologico, 1990), page 14; and Lygia Sigaud, Os clandestinos e os direitos : estudo sobre trabalhadores da cana-de-acucar de Parnambuco (Sao Paulo: Livraria Duas Cidades, 1979). 54 Sigaud, op.cit., fn 53 55 The minimum wage was originally promised in 1936 but not implemented: Lei no. 185 de Janeiro de 1936. It was revived by the Estado Novo in 1938: Decreto-Lei No. 399 de Abril de 1938, and finally implemented in 1940: Decreto-Lei no. 2162 de 1 Maio de 1940. 56 Constitution of 1946, Article 157 I 335 This section provides first an overview of the formal structure of the minimum wage and its significance. The discussion then turns to the Vieira court and the truck system which was used in the cacao region to circumvent the minimum wage through the use of the barracdo (fazenda store).

The formal structure of the minimum wage was tied to the concept of basic needs, or the cost of a "cesto basico" (basic basket) of goods and services which were considered essential: food, housing, clothing, hygiene, and transportation.57 Although the cost of these items was tied to the rate of inflation, fixing the amount of an increase in the minimum wage was more a political than an economic exercise. During the Fourth Republic the amount of the annual increase was a matter of contention which involved the union movement, private capital, the three levels of government, and foreign lending institutions. With the developmental nationalists in power, the real value of the minimum wage was maintained at a relatively constant level from 1960 to 1964. But after the 1964 coup, the real value of the minimum wage dropped steadily, at least until 1974, because of the arrocho salarial (wage squeeze) imposed by the military regime.

The minimum wage was a significant gain for Brazilian workers but it had several shortcomings for rural workers in particular. One of these shortcomings was that (until

"CLT Article 81 58 According to DIEESE (Departamento Intersindical de Estatistica Estudos Socio-Economicos), the pattern for the minimum wage was as follows: 1. 1940 to 1951: the minimum wage was frozen from 1946 to 1951, resulting in a sharp drop in the real minimum wage; 2. 1952 to 1964: there was a constant rise in the real value of the minimum wage until 1957; the real value dropped moderately from 1957 to 1960, and remained constant from 1960 to 1964; 3. 1964 to 1995: the wage policy of the military regime was to force a drop in real wages in all sectors, which caused a corresponding drop in the real value of the minimum wage from 1964 to 1974; the real value improved slowly from 1974 to 1982, and then declined steadily from 1982 until 1991. In 1994 the real value of the minimum wage was 24% of what it was in 1940. 4. 1995 to the present: the real value of the minimum wage has recovered moderately to approximately 32% of its real value in 1940; in 2007 it continues to increase in real value on an annual basis. Cesar Henrique Concone and Walter Barelli, Estudos Socio-Economicos: Dez anos de politica salarial (Sao Paulo: DIEESE, 1975). 336 1984) the minimum wage varied from region to region, to a degree that did not reflect the relative cost of living.60 The State of Bahia was one of twenty-two regions and the regional minimum for Salvador was below that of Sao Paulo and the other industrialized urban centers. Bahia was divided into three sub-regions (reduced to two in 1964) and within the cacao region the municipalities of Ilheus, Itabuna and (after 1964) Itajuipe had a higher minimum than neighbouring municipalities such as Coaraci and Urucuca. To cacao growers this seemed inequitable because it caused labour costs to vary from one municipality to another while the selling price of cacao was fixed by the international market. To cacao workers this seemed inequitable because the cost of food tended to be higher in the more remote municipalities where the minimum wage was lower.61 Appendix D shows the regional minimum wage by month, day and hour in the two sub- regions within the cacao region from 1963 to 1974.

During the course of the Fourth Republic, the minimum wage became a national institution, with a direct economic impact on millions of workers and their employers in the private and public sector, including those in high wage sectors. The monthly minimum wage became a unit of measure (a "salario minimo " or a "minimum salary") for various purposes and was used as a benchmark against which other wages were measured. In the formal economy only 50% of the workforce earned more than one "salario minimo", while the minimum wage remained only an aspiration for the remainder of the population, including rural workers, for whom the minimum became, in effect, a maximum available only through contention.

One of the shortcomings was addressed when a minimum family salary was established in 1963: Lei n. 4.266 de 3 de Outubro de 1963. The provisions of this statute did not apply to rural workers until 1988.

60 Using 1965 as a sample year, die variation in the regional minimum wage was Sao Paulo Cr $ 2200, Ilheus Cr $ 1720, and Urucuca Cr $ 1320. See Appendix D. Although the DIEESE study compared the cost of living in major urban centers, reliable cost of living statistics comparing smaller centers in Bahia and Sao Paulo are not readily available. The cost of living for rual workers was higher in Urucuca than in Ilheus, due to food costs.

61 O Intransigente. 25 de Mho de 1956. 337 In section 7.5 we saw that the agrarian social movement in Sao Paulo used the dissidio individual as a form of contention in its campaign with the coffee colonos for the minimum wage. As we saw in Annunciato's case, this effort was initially unsuccessful. In 1963, however, the ETR formally reversed the effects Annunciato's case by providing that the minimum wage applied only to the employment contract itself, and that a separate contract was required to deal with the growing of food for self-consumption. This provision had an unexpected result in the cacao region. Prior to 1963, cacao workers who resided on the fazenda commonly enjoyed the privilege of planting food crops for their own consumption between the rows of cacao; by 1970 this privilege had almost disappeared. While the advent of the ETR contributed to this development, its disappearance was also due to the advice of CEP LAC technicians to maintain clean and open spaces between the cacao trees to prevent the spread of pests and disease.

One result of the disappearance of this practice was that cacao workers and their families suffered from increasing hunger, as we saw in section 4.9. The region did not produce enough food to feed its workforce because the land was dedicated to the monoculture of cacao. The food grown by burareiros was not sufficient to allow the workforce to reproduce itself, leading the commercial network to import food from outside the region at a relatively high cost. The traditional vehicle of food distribution was the barracdo (fazenda store), with its method of operation left by many fazendeiros to the discretion of the administrador. The barracdo provided a credit system for cacao workers. The workers kept a running account at the barracdo which was settled when wages were due at the end of the month, or they were paid with chits (vale) which could be spent only at barracdo. The barracdo was notorious in the cacao region because most cacao workers were illiterate and unable to keep their own accounts. Food prices were admittedly high in the region, but workers were suspicious of being charged in excess of

w ETR Article 41 63 Antonio Fernando Guerreiro de Freitas, "Os Donos dos Frutos de Ouro," (unpublished master's thesis, Universidade Federal de Bahia, 1979) 338 market prices or of being cheated because of their illiteracy. However, for workers in remote areas, and in areas without a weekly market, the barracao also offered a benefit because it made food available locally and it provided credit until payday.

For the administrator the barracao may have been a source of illicit profits, but for the coronel its main benefit was that he could pay his workers on credit at a time when he himself was dependent on the regional credit system, pending the maturation and sale of the cacao crop. In addition, the region was chronically short of cash and barracao allowed the internal economy of the region to function despite these shortages.

In the Vieira court the barracao was attacked as a form of "truck" system. The truck system has been defined by George Hilton, a British labour historian, in terms that are equally applicable to the barracao:

The "truck system" is the name given to a set of closely related arrangements whereby some form of consumption is tied to the employment contract.

Hilton argued that the term "truck system" encompassed two distinct phenomena: one in which truck was "outright compulsion to deal with the employer's shop or to accept wages in goods as a condition of employment," the other in which the compulsion applied only to an advance on wages. In the cacao region the second phenomenon was common place at the time of the Vieira court while the first had virtually disappeared. Hilton also argued that, in Britain, truck had been used both to bind workers to their employer through debt and to circumvent the minimum wage. At the time of the Vieira

George W. Hilton, "The British Truck System in the Nineteenth Century," The Journal of Political Economy 65.3 (1957): 237-56, page 237. The paragraph which follows is based on this article. 339 court, in the cacao region the barracao was commonly used for the purpose Hilton identified as circumventing the minimum wage.65

Indeed, the claims presented to the Vieira court suggest that in general cacao workers were physically able to abandon their employment even when in debt to the barracao and that they were generally conscious of their right to be paid the minimum wage which the barracao was used to circumvent. On the other hand, rural workers were often unaware of the value of a saldrio minimo at any given time because the minimum wage was increased annually. Finally, many workers accepted less than the minimum wage because unemployment was their only alternative. In 1949 the ILO adopted Convention No. 95 (Convention Concerning the Protection of Wages)66 which required that wages be paid in cash, except as authorized by law. Shortly thereafter, as part of its campaign to organize rural workers during the Vargas presidency of 1951-1954, the PCB called for the abolition of the barracao in concert with the agrarian social movement. In 1957 the developmental nationalists ratified ILO Convention No. 95 and in 1963 the ETR outlined which in kind payments were authorized for rural workers, as the ILO convention permitted.

In the history of colonial slavery, the British used truck as a form of labour control which resembled the debt bondage of Amado's novels. As Amado suggested happened in the cacao region, truck was used in the British West Indies as a "modified form of slavery":

Articles of the lowest quality were marked at the highest prices and the employer was accommodating enough to give goods in advance to the employee which was deducted from the amount of his wages: by this means the employer was always able to demand the services of the employee who always remained hopelessly in debt, and thus the system as practiced...was but a modified form of slavery.

Howard Johnson, ""A Modified Form of Slavery": The Credit and Truck Systems in the Bahamas in the Nineteenth and Early Twentieth Centuries," Comparative Studies in Society and History 28.4 (1986): 729- 53, page 738.

66 The convention came into force on 24 September 1952. 67 Edgard Carone, O P.C.B. (1943-1964') (DIFEL, Sao Paulo, 1982), Volume II, page 30, and see Raimundo Santos and Partido Comunista Brasileiro, Ouestao agraria e politica: autores pecebistas (Seropedica, RJ: Editora da Universidad Federal Rural do Rio de Janeiro, 1996) 340 A campaign against the truck system in the cacao region was introduced into the Vieira court by Antonio Olimpio, who had been employed in the Ministry of Labour in Rio de Janeiro at the time that the ratification of the ILO convention was under discussion and was subsequently transferred to Ilheus as a Ministry fiscal (inspector). Antonio Olimpio's law office filed claims on behalf of rural workers in which the barracao was referred to as the "truck-system." As we have seen in section 8.5, he challenged the legality of the "truck-system" in several claims involving Jose Carlos de Sa Adami, including the claim of Jorge Celestino Barreto and Epaminondas da Silva, who were fired when they complained about being paid in chits rather than cash. And in another case, his client was Antonio Souza de Santos, who abandoned his employment while still indebted to the barracao. In the juridical field these workers were able to confront Jose Carlos as his formal equals and claim their right to be paid the minimum wage.

The barracao issue was most fully litigated in Antonio Souza's case after Judge Vieira had ruled that Jose Carlos's barracao was contrary to the provisions of the ETR. In effect, newly hired workers were required to accept advances while awaiting their initial wage payments. They were hired as diaristas, but rather than pay them each Saturday morning, as was the practice on other fazendas, Jose Carlos paid his workers only once a month and two weeks in arrears, ensuring that an advance on wages was inevitably required during their first six weeks of service. Once in debt to the barracao, most workers could expect to accumulate a debt from month to month, especially because Jose Carlos paid less than the minimum wage. Although Antonio Sousa was entitled to have the balance of his wages paid in cash, calculated according to the accounting system maintained by the administrador, at the end of most months he remained in debt to the barracao. As a remedy, Judge Vieira ordered a salary adjustment (reposicao salarial) in which Antonio Souza would be paid 100% of his wages in cash for his entire period of employment, with no deduction for the inkind payments received from the barracao.

341 Judge Vieira justified Antonio Souza's apparent windfall by citing a principle embedded in the Civil Code:

...he who gives something in order to attain an illicit or immoral end or one prohibited by law has no right of recovery.

Jose Carlos was revel at the hearing but when served with the notice of judgment he retained Amilton Ignacio de Castro to file an appeal. In his pleadings, Castro argued that the definition of a truck system was restricted to cases involving "outright compulsion". In a slight directed towards Antonio Olimpio, he mocked the use of an English term and questioned how the term "truck-system" had found its way into the Brazilian legal lexicon. Although Castro agreed with the description of a truck system in the initial (statement of claim) as "odious" (nefando), he argued that the barracdo operated by his client was for the sole benefit of the workers, whose freedom of choice was paramount, and was therefore "not a truck system, which is odious when it is imposed or when the employee is forced to receive his salary in produce."69

Castro pointed to the provisions of the CLT which differed from those of the ETR. Under the CLT, in kind payments of food could be used to pay wages provided that the worker receives a minimum cash payment of 30% of the regional minimum wage,70 while Antonio Sousa had the choice of taking 100% of his wages in cash at the end of the month if he did not want to deal with the barracdo.

Antonio Olimpio framed his argument around the legislative history of the ETR. Article 29 of the ETR allowed a grower to make deductions from the wages of a rural worker for housing — up to 20% of the minimum wage — and for meals (alimentacao), meaning prepared food — up to 25% of the minimum wage. When Congress approved the

Civil Code, Article 971. The article reads: ... anulado o pagamento feito ao arrepio da lei JCJ 77. See Appendix A CLT Articles 81, 82 and 458 342 ETR, the original version of Article 29 allowed for a further deduction for in kind payments of uncooked produce, as opposed to meals or prepared food.71 This further deduction was vetoed by President Goulart for the following reason:

To maintain this clause would signify the institutionalization of the system of chits or barracdo.7 9

The purpose of the presidential veto was explicit and the veto was upheld by Congress, leading Antonio Olimpio to argue that the purpose of Article 29 was to prohibit the barracdo. Castro's response was similar to the argument on representativity discussed in section 4.8: the presidential veto left a gap in the ETR; pursuant to Article 79 of the ETR, the provisions of the CLT applied to rural workers except to the extent that they "contradict or restrict" the provisions of the ETR. Again the phenomenon of interlegality threatened the protection of the labour rights of rural workers.

The TRT5 judges who heard the appeal were divided and issued a split decision ~ a rare occurrence --.perhaps because at the time of the appeal some labour judges were in contention with the military over the imposition of the arrocho salarial. The majority voted to allow the appeal based on the language of the CLT, which permitted the operation of a barracdo in isolated workplaces:

A system cannot be characterized as a "truck system" when the provision of food products represents up to 70% of the minimum wage... In dealing with a rural worker carrying out a contract on a fazenda in the interior of

The version of the ETR originally approved by Congress would have allowed a grower to deduct the value of food items provided to a worker from the minimum wage but President Goulart vetoed this provision specifically on the grounds that it would legitimate the barracao. The phrase that was vetoed read: ...adiantamentos em generos alimenticios e medicamentos... (advances in food items and medicine). Segadas Vianna, op.cit., fn 20, page 121 72 Campanhole, op. cit., fn 16, page 48. The original in Portuguese reads: Manter esta alinea significa institutionalizar o sistema do 'vale' e do 'barracao'. 73 ETR Article 179. 74 CLT Article 458 343 the country the form of payment by means of uncooked produce cannot be prohibited as long as it does not exceed 70% of the minimum wage.75

The effect of the TRT5 decision was to legitimate the barracao in the circumstances permitted under the CLT. The CLT required that a worker's choice not be limited in any way; it allowed an employer to operate a barracao in an isolated location but only on a non-profit basis and for the sole benefit of the workers, with prices that were "reasonable." While these formal protections would prevent many of the abuses common in the cacao region, they were virtually impossible to enforce, nor in Antonio Souza's case was there any suggestion that the barracao met these conditions. Despite the incoherence of the majority decision, the TRT5 reduced the judgment from the 100% of wages that Judge Vieira had ordered to 30% of the regional minimum wage, the minimum that the CLT required. On the assumption that was a windfall for Antonio Souza, the majority substituted their own Civil Code maxim for that of Judge Vieira:

He [Jose Carlos] made a wrong payment to the claimant. "He who voluntarily paid what he did not owe must prove that he did it through error."77

10.5 Conclusion to Chapter 10

In this chapter we saw that the Vieira court protected the core labour rights of rural workers within the juridical field. However, commodification was a recurring problem because the junta was limited in its ability to protect these labour rights in the social field where the fear of reprisal prevented rural workers from the claiming their rights as long as the employment relation continued.

The chapter began with a consideration of the centrality of the legal form, the threshold issue of whether a pre-existing form of labour control from the social field was

The total deductions could add up to 70% if salary advances were included in the deductions. CLT Article 462 Civil Code Article 965 344 congruent with the statutory definition of "rural worker" from the ETR. We saw that the CLT and the ETR directed the judge to privilege the substance of the productive relation over its form and that in the Vieira court the definition of "rural worker" was given a broad interpretation consistent with the statutory purpose of protecting labour rights. With respect to women workers, we saw that the Vieira court applied an organizational test in determining whether or not a woman's work within the empreitada form gave rise to the rural worker relation, in effect rejecting the formalist approach of a contractual analysis. On the basis of statements he made from the bench, which appear in the junta records, Judge Vieira appears to have recognized the patriarchal nature of male-to-male contractual relations and to have acknowledged that when women worked in cacao they were entitled to full labour rights.

With respect to protection against wrongful dismissal, we saw that employers experienced some difficulty in meeting the tests set out in the ETR for just cause for discharge. This worked to the advantage of rural workers in various circumstances and provided some substantive protection against arbitrary terminations. However, commodification once again operated to deny rural workers the full benefit of the statute because the remedy for termination without just cause was the payment of severance pay rather than reinstatement. We saw that the earnings of an empreiteiro or a diarista could be interrupted arbitrarily in spite of his or her estabilitdrio(a) status, while the wages of an assalariado(a) were protected unless and until the rural employer paid double severance. The juridical field and the social field were mutually constitutive in the sense that the interpretations given to substantive just cause and the procedural protections of estabilidade were related to conduct in the social field and in the sense that the conduct of rural employers and rural workers in the social field was influenced by the likely outcome of contention in the juridical field. With the introduction of the FGTS in 1966, estabilidade was effectively eliminated for urban workers while it was formally continued for rural workers. The FGTS thus formalized for urban workers the

345 commodification of estabilidade that the inadequate provisions of the ETR had already imposed on rural workers.

With respect to the minimum wage, cacao workers were certainly conscious that they were entitled to be paid the minimum wage. However, wage levels lagged behind increases in the minimum wage. This wage lag reflected the dependency of the cacao economy on the world system: commodity prices were determined by the international market while the minimum wage was determined politically according to domestic conditions. In accordance with their dependency on the export market, cacao growers were willing to pay the minimum wage in certain conditions and unwilling in others; consequently, increases in wages seemed to follow increases in the minimum wage only imperfectly. The empreitada was available to growers who sought to link wages to productivity but the concern for quality control limited the circumstances in which the empreitada could be used for this purpose.

The widespread use of the barracao as a truck system was motivated by various considerations, including the isolation of the fazenda, the credit system, the attendant problem of cash flow, and the avarice of the grower and/or his administrador. However, the statutory provisions of the CLT and the ETR were introduced to protect workers in general and rural workers in particular, against the abuses of the barracao. In the cacao region, the relatively high price of food explains in part why shopping at the barracao consumed such a large per centage of a worker's minimum wage, and as the region developed cacao workers were able to escape their dependency on the barracao by shopping at the local weekly markets. At the same time, the "traditional standard of life" of cacao workers was changing as the "cultural component" of wages increased, so that providing food and shelter was no longer sufficient for the rural workforce to reproduce

no itself, as Marx suggested. At the time of the Vieira court, the social life of rural workers

Karl Marx, Wages, Price and Profit (Peking, Foreign Languages Press, 1965), p. 72-74

346 and their children ~ education, convenience and leisure — were increasingly important, inducing some growers to improve conditions on the fazenda while others preferred to allow their workforce to relocate to nearby urban centers where the state was responsible for their social condition. This process of development made the truck system less viable.

Finally, with respect to the issue of protecting substantive labour rights in general, the Vieira court met the standard of "coherence" set out in section 1.4 because its interpretation of the relevant legal texts was both rational and protective of labour rights. With respect to the truck system in particular, Judge Vieira's interpretation may be contrasted to that of the TRT5 judges: although the interpretation of the TRT5 judges was equally rational it undemined the protection of a core labour right and was therefore less "coherent" than that of Judge Vieira. As set out in section 1.7, the problem of non­ compliance with the ETR in the cacao region was caused by factors outside of the juridical field.

347 Chapter 11: Conclusions

11.1 Introduction

The era of the Vieira court came to an end in June 1973 when the ETR was repealed and replaced with a statute that undermined some protective features of the ETR while incorporating rural workers into the general regime of the CLT.1 From some perspectives, this era might be viewed as disappointing. As of 1973, rural workers in the cacao region still did not enjoy the labour rights that the ETR had promised, and the "economic and social reach" of the ETR had been proven to be less extensive than Caio Prado had predicted when the statute was enacted in 1963. From Caio Prado's perspective, the constricted political opportunity structure which the change in political regimes brought about only a year after the enactment of the ETR may not have been foreseeable. As suggested in section 1.7, however, other factors also contributed to the failure of the ETR to live up to its promise, including structural defects in the labour law regime and the flawed performance of the region's rural unions.

While the agrarian social movement brought about legal change and raised the consciousness of rural workers concerning their legal rights, the performance of rural unionism in the cacao region and the limitations of state law both contributed to the frustration of these rights. The performance of rural unions in the cacao region was flawed because they adopted the form of unionism ~ assistencialismo — prescribed by the military's agrarian policy, and abandoned other forms of contention in favour of a bureaucratic approach to claims for labour rights. This was in part due to the political orientation of the union leaders ~ the leadership of the Ilheus STR was anti-communist and supported the military coup. But the STR's abandonment of contention contributed to the problem of non-compliance with the ETR because the promise of labour rights required a continuing campaign for compliance in the social field. Although the

1 Lei No. 5.889 de 8 de Junho de 1973 348 constricted POS (political opportunity structure) of the military regime effectively restricted contention to the juridical field — thereby contributing to the problem of non­ compliance — the dissidio individual in the Vieira court remained available as a coherent form of contention. Only after the era of the Vieira court did the STR begin to revert to a contentious approach.

On the positive side, the case study showed that labour rights were available in the juridical field throughout the time of the Vieira court, albeit in a less than ideal form. In the trabalhista project, labour rights were perceived as social rights which a worker would enjoy during the course of the employment relation. However, the dissidio individual led to a different result when labour rights became commodified in an "industry of judicial accords." Commodification was both a cause and effect of the gap between the availability of labour rights in the juridical field and non-compliance in the social field. Non-compliance characterized the employment relation because the fear of reprisal prevented workers from claiming labour rights while remaining on the platform - - the employment relation ~ from which trabalhismo intended them to be delivered. While the trabalhistas touted the dissidio individual as an ideal model for the protection of labour rights, the model lacked an essential component: a mechanism to alleviate the fear of employer reprisal, the lack of which was a major structural defect in the CLT/ETR regime that contributed to the problem of non-compliance with the ETR. As a result labour rights were commodified in the sense that they were available only in the form of a cash payment, to be remitted only after the employment relation was at an end.

11.2 Industrial legality and the legal form

In the trabalhista project, Labour Justice was touted as the protector of labour rights and the dissidio individual was crafted as the legal form of a dispute between a worker and an employer over those rights. However, the ability of Labour Justice to protect labour rights was limited by the legal form. Within the legal form of the dispute,

349 workers and employers were engaged in a juridical relation in which they were formally equal. This was of enormous benefit to cacao workers not only because the ETR provided a normative basis for their claims but also because they were protected by special procedural rules designed to alleviate the inequality of the social field. Finally, in the Vieira court they appeared before an unbiased adjudicator who accepted their evidence as equal to that of a coronel.

However, although it was a benefit to rural workers in many ways, the legal form also proved to be less than ideal. The procedural rules allowed the coronets to cause delay through the appeal process, the burden of which was born by the claimant worker. The normative content of labour rights included conditions of eligibility which, due to the social inequality of the parties, allowed respondent employers to structure productive relations in a manner that sometimes frustrated claims for labour rights. Interlegality played a negative role within the juridical relation. While the normative structure of the ETR was intended to protect the labour rights of rural workers, as legal rights these were subject to the rules of interpretation of the juridical field. Gaps in the ETR were sometimes filled by the rules of the CLT, and even less protective fields of law also came into play, notably the civil code — including estate law — and the Code of Civil procedure.

The most important limiting factor of the legal form was that the dissidio individual operated on a case-by-case basis. While the junta had ~ and used ~ the power to enforce its own judgments, it lacked general authority to enforce the ETR. Thus, the new juridical relation between cacao workers and the coroneis constructed by the Vieira court had a "trickle down" effect that caused the coroneis to make adjustments in the lei do cacau. However, the trickle down effect did not produce general compliance, as noted by Baiardi and the church activists after the time of the Vieira court had come to an end (see section 4.5). The new juridical relation remained within the juridical field. Its impact in the social field was limited by the persistence of the lei do cacau.

350 As noted in section 1.4, the role of the judiciary is central to Kennedy's approach to the rule of law. Hence Judge Vieira was bound by the rules of "interpretive fidelity" to the relevant legal texts, which, as we have seen, included texts from outside the ETR. I proposed "coherence" as a test for adherence to the rule of law in the juridical field: if the judge's interpretation was rational and consistent with the trabalhista purpose of protecting labour rights then it was, in my terms, "coherent" and "consistent with the rule of law". I have argued throughout that Judge Vieira passed the test of coherence in dealing with the contested claims that came before his court. In addition, he pursued the enforcement of his own judgments with diligence, to the extent that he used execucdo as a form of contention with the coronets. This suggests that little more could be expected of him in the enforcement of labour rights. The rule of law was a limiting factor because even when faced with the non-compliance of the coronets, the rule of law limited the effect of systemic enforcement in the social field as noted above. In this sense, despite judge Vieira's best efforts, the lei do cacau which predominated in the social field was the rule of law.

With this understanding of some of the limitations of state law, we can now consider what human agency was capable of achieving in the historical circumstances addressed in this dissertation. As a regime of industrial legality, the CLT was distinguished from other forms of labour control by the degree to which it limited the domination of capital. The CLT introduced into the employment relation, in varying degrees according to changing circumstances, five distinctive elements: mutuality, coercion, accommodation, support and voluntarism. This regime of labour law was continued despite various changes in the political regime, back and forth from the liberal state to dictatorship, while within each political regime the five elements were mixed in a different ways, stressing coercion at one time and accommodation or even support at another. For example, the support of the developmental nationalists for rural unionism had a different character from the support of the military's agrarian policy because these contrasting political regimes tolerated differing degrees of mutuality. 351 Tilly's interactional approach helps us to better understand the relation between the fluctuating fortunes of rural unionism and the respective POS (political opportunity structures) of various political regimes. Thus, while the CLT regime of industrial legality adjusted to successive political regimes, unions played a part in transforming the POS. During the Fourth Republic they formed parallel organizations to support developmental nationalism and to campaign for labour rights, to which opposing forces responded with a form of contention — the military coup ~ which the developmental nationalists and their allies were not prepared to counteract. As Gramsci predicted, industrial legalism was proven to be "not the ultimate and definitive victory" for the working class (see section 1.5), as developmental nationalism went down to defeat at the hands of what Gunder Frank described as a "world system of capital accumulation" (see section 3.2).

At the same time, the experience of the agrarian social movement showed that improvements in the plight of rural workers were possible even within the constraints of capital accumulation and the limitations of state law. The campaign for labour rights was effective and brought with it improvements in the juridical field and, to an extent, in the social field as the state and the growers were forced to accommodate the social movement in varying degrees. The ETR may not have had the "economic and social reach" that Caio Prado predicted for it, but achieving formal legal rights rarely does have the immediate transformative impact that social movement participants anticipate.

Within the CLT regime the problem of enforcement was endemic, and no more could be expected from labour rights for rural workers than had been achieved by the CLT for workers in the formal economy. In fact the trickle down effect of legislation and adjudication were less likely to benefit rural workers because of the relative isolation of their workplaces. The elite authors of the ETR failed to look beyond the trabalhista vision to imagine what state law could contribute to fill the enforcement gap, beyond the existing model of the dissidio individual. The developmental nationalists may have initiated a labour inspectorate, had they maintained state power, but they did not. Nor did

352 the PTB-PCB alliance have the opportunity to implement a potential solution to the challenge of enforcing labour rights in the workplace: an OLT (workplace organization). The formation of an OLT could insulate individual workers, at least to some degree, from the threat of employer reprisal, given that the absence of effective protection from employer reprisal was also identified (see section 7.2) as a structural defect in the labour law regime. However, allowing unions to organize at the workplace level would also tilt the balance within a regime of industrial legality towards mutuality because it would allow the union to challenge capital at the level of production. Thus it was unlikely to be adopted by the trabalhista elite whose CLT regime was constructed around the fear of a Gramscian union movement in which industrial legality was merely a stepping stone to political change. During the Fourth Republic organized labour constructed unofficial "parallel organizations," including the OLT, but these were designed more to politicize the union movement than to enforce labour rights. For the unions, the political lesson was inescapable: no matter what regime of industrial legality the state adopted, organizing on the workplace scale was a pre-requisite both for protecting labour rights and for transforming the POS of the political regime.

A labour inspectorate and an OLT were two possible ways in which the CLT regime could have reduced the gap between the juridical relation and actual-existing labour relations in the social field. In their absence and in the absence of a "culture of compliance", cumplimiento ideologico guided the coroneis in their approach to the ETR, and produced compliance only "when they think that it is a good law". This form of compliance is related to the phenomenon of interlegality which operated not only within the Vieira court but also in the lei do cacau.

The lei do cacau was influenced by state law in various ways, beginning with colonial slavery and its formal abolition. During the New Republic the coroneis began to adjust to the eight hour day and when a minimum wage was introduced in 1940 they responded with a transition from the assalariado to the diarista form of labour control. In

353 1949 the paid weekly rest day became state law and the coronets responded by eliminating Saturday work.

The lei do cacau incorporated norms from various fields, including state law, and while power relations were an important determinant, other forces such as the mode of production, technological change and the level of class struggle in the region were highly influential. Power relations allowed the coronets to adapt the lei do cacau in order to avoid what for them were the negative consequences of state law. With respect to the forms of labour control within the lei do cacau, the coroneis changed from one form to the other, according to their self-interest and according to the objective needs of production. For example, when the contratista form proved to be incompatible with the legal form of rural worker, it disappeared quickly because its objective need was virtually spent and the coroneis adjusted accordingly. The parceria (sharecropping) was uncommon in the cacao region because it did not suit the mode of production and because state law had demonstrated its intolerance for a. falsa parceria or one created for the purpose of avoiding labour rights. However, when the crop was decimated by the plant disease known as vassoura de brouxa (witch's broom) in 1989, the parceria became the dominant form of labour control throughout the region because the opportunity for profit had all but disappeared and a parceria shifted the chance of loss onto the shoulders of the parceiro. A final example is the use of the empreitada. Baiardi's study showed that after the Vieira court came to an end, growers in the cacao region turned increasingly to the empreitada because of its efficiency and because it allowed the grower to escape certain provisions of the ETR (and the successor statute). The hours of work provisions could not be applied to an empreiteiro because he set his own hours, and women who worked as invisible "helpers" on an empreito were consistently paid less than the minimum wage.

2 Harry Arthurs, "Labour Law Without the State," University of Toronto Law Journal (1996): 1, page 45 354 When the lei do cacau made available forms of labour control which did not fit the legal form of "rural worker" it sidestepped the issue of compliance under the ETR. While this was one of the many limitations of the ETR, compliance was ultimately an issue of human agency, as illustrated by the reflexive character of the coroneis reaction to state regulation. The power relations that were at play in the cacao region ensured that the fazendas would constantly remain as sites of class conflict, from which it follows that the ETR regime of industrial legality ought to have supported a union structure on the fazenda scale if there was to be any prospect that the coroneis would comply.

The case study revealed that although the dissidio individual was available to the Ilheus STR throughout the time of the Vieira court, it was rarely used as a form of contention in the campaign for labour rights. The Vieira court was in fact a more consistent protector of labour rights than was the STR, to the extent that the junta once intervened to protect labour rights when the STR was complicit in what was tantamount to caxixe (the regional term for land fraud). From this we see once again that whatever the regime of industrial legality, human agency can be a determining factor in compliance because a union that eschews contention will not protect labour rights no matter what legal form is available.

From the perspective of the agrarian social movement, the CLT regime had several features which made it attractive as a regime of industrial legality. The CLT regime made union organizing a relatively simple matter because employers were formally excluded from the recognition process. However, the apparent simplicity of the process was compromised by the relation between unions and the state. In fact, union recognition became a political process in which the state could support, accommodate or coerce unions according to its ideological predilections. The strongest allure for unions seeking official recognition was to gain access to the union tax which guaranteed their financial viability, again at the expense of submitting to the financial control of the state. The state also controlled democratic processes within the union, both through its ability

355 to remove a candidate or official from consideration for office and through the notion of unicidade by which the union chosen by the Ministry was imposed on all members of the economic category. Without denying the attractiveness of many of its features, the CLT regime therefore raised significant issues of union democracy which are beyond the scope of this dissertation.

One of the negative features of the CLT regime was the apparent disconnect between organizing a union and engaging in collective bargaining. Despite the renown of the cacao region as the birthplace of rural unionism in Brazil, rural unions in the region neither achieved a collective agreement nor engaged in collective bargaining prior to or during the time of the Vieira court. Although the dissidio individual offered a coherent form of contention for the protection of labour rights, the dissidio coletivo did not hold out a similar prospect for collective rights. The normative power was potentially an attractive feature of the CLT regime for workers who were without bargaining power because it suggested the possibility of achieving a collective agreement without the threat of strike action. However, the conservative approach of Labour Justice made the dissidio coletivo unattractive for rural unions because the logic of their campaign was to achieve the statutory minimums that state law already promised to rural workers rather than to expect improvements through collective bargaining.

11.3 Epilogue

I remain uncertain why the ETR was repealed in 1973, leaving that as an issue for further study, although I suspect that the statutory definition was central to the decision. The general trend in rural Brazil was away from a permanent workforce residing on the rural property and towards the casualization of rural employment. This trend was noted in the cacao region until 1989 when vassoura de brouxa decimated the crop. In the Northeastern state of Pernambuco, where the tradition of contentious rural unionism was continued under the military regime, most of the workforce in the sugar crop was

356 converted to casual labour.3 The new statutory definition was, in effect, a dddiva (gift) to rural employers because it excluded casual workers from the legal form of rural worker, effectively eliminating their labour rights.4 To add insult to injury, the identity of trabalhador rural (rural worker) was eliminated and replaced by the empregado rural (rural employee). Growers accepted their gift and, in an expression of cumplimiento ideologico (ideological compliance), willingly complied with this "good" law concerning casual workers. A precarious workforce of casual labourers was constructed, with no labour rights. A decade later, many of these precarious rural workers rejected the "rural employee" identity which the new statute offered and self-identified as "landless", often as members of a new social movement popularly known as the MST.5

3 Lygia Sigaud, Os clandestinos e os direitos : estudo sobre trabalhadores da cana-de-acucar de Pemambuco (Sao Paulo: Livraria Duas Cidades, 1979). 4 Lei No. 5.889 de 8 de Junho de 1973, Article 2. The new definition reads in English: A rural employee is any physical person who, on a rural property or in a rustic setting, provides services other than of a casual nature to a rural employer, on whom he or she is dependent for which he or she receives a salary The Portuguese version reads: Empregado rural e toda pessoa fisica que, em propriedade rural ou predio nistico, presta servicos de natureza nao eventual a empregador rural, sob a dependencia deste e mediante salario. 5 Movimento dos Trabalhadores Rurais Sem Terra or Landless Rural Workers Movement. 357 Bibliography

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380 Appendix A: The archive

The case study is based on the contested claims filed by rural workers in the Junta de Conciliacao e Julgamento de Ilheus (Ilheus Board of Conciliation and Judgment) between 1964 and 1974. The junta archive is housed in CEDOC (Centro de Documentacdo e Memoria Regional) of the UESC {Universidade Estadual de Santa Cruz or State University of Santa Cruz in Ilheus). The archive is known as the AJJM (Archivo Juridico Jodo Mangabeira or Joao Mangabeira Juridical Archive).

The AJJM has been organized by CEDOC staff. The files are kept alphabetically, according to the name of the claimant. Each file has been assigned an AJJM document number, which facilitates the location of any individual file. As an additional finding aid, the files are in boxes which are sequentially numbered within the classification system used by the junta, in six categories:

1. Archivado 2. Concilicao 1 3. Concilacao 2 4. Execucao 5. Homologacao 6. Especiais

The junta secretariat numbered each claim sequentially when the file was opened, according to the year, but this numbering system is of little use in locating a file within the AJJM. Similarly, appeal files were given separate number by the TRT5 in Salvador; however, when returned to the junta the appeal file was incorporated into the junta's original file. In my data base files are identified numerically (JCJ#).

I worked with the AJJM on three occasions, in 2005, 2006 and 2007. The director of CEDOC at the time was Janete Ruiz Machado, who welcomed me with full access to

381 the collection, a workspace, and permission to digitize the files. The current director, Andre Luis Ribeiro, generously provided copies of his publications on regional history. The assistance of Joao Cordeiro was invaluable to me on a day to day basis, giving generously of his time and of his extensive knowledge of regional history. His greatest favour was to introduce me to Alvaro Souza Neto whom I engaged as my research assistant. Alvaro worked with me on a daily basis; he became a friend and accompanied me to the remote corners of Ilheus where we visited the fazendas that are featured in the case study. The case involving the Ilheus STR as a respondent is found in Conciliacao 1, Box 1, Document 1, File # 609/72, and the following is a list of the other claims discussed in the case study of the Vieira court.

382 JCJ Doc claimant's first last # category box # File # names name 10 conciliate) 1 2 63 554/66 alfredo ernesto da almeida 36 execucao 15 194 650/72 aristides alves campos 37 execucao 19 240 773/65 jose paulo 40 execucao 24 318 264/71 veraci gome de jesus 44 execucao 30 425 343/64 reinaldo bispo de melo 47 execucao 41 549 582/65 raimundo de oliveira francisco 49 execucao 49 648 436/71 remoaldo santos 16 conciliacao 1 2 81 003/72 diva soares almeida 19 conciliacao 1 2 80 214/74 diva soares almeida 24 conciliacao 2 40 795 1031/65 orlando machado rios 53 execucao 54 708 824/64 rosel antonio da silva 54 execucao 56 742 237/72 floriano ferreira silva 12 conciliacao 1 2 59 1153/65 algenor almeida 13 conciliacao 1 2 52 276/73 raimundo costa alencar 30 execucao 7 88 669/64 jorge celestino barreto 71 execucao 66 983 043/64 jose francisco santos 72 execucao 66 974 37/64 egidio ribeiro da silva domingos 75 execucao 69 1066 133/74 nogueira santos 77 execucao 71 1095 1310/65 antonio souza dos santos 80 execucao 75 1136 506/72 vivaldo arampos santos 82 execucao 83 1201 560/65 laudelino jose dos santos 83 execucao 83 1199 460/73 francisco aleixa santana 85 execucao 84 1206 abilio agnelo da silval 86 execucao 86 1216 396/68 mauricio dias teixeira 88 execucao 90 1266 250/65 merentina maria jesus manoel 92 execucao 91 1301 444/65 evangelista santos 94 execucao 91 1298 431/65 joao ferreira da silva 31 execucao 7 89 667/65 antonio ferreira botelho 33 execucao 8 106 796/65 josefa sousa brito Appendix B: Crop value

year Crop size Export price: Total crop value (crop size (1.000 av. $ US per x export price) in $ US tons) ton 1000

1963 110 510 56.100 1964 123 466 57.318 1965 124 301 37.324 1966 176 451 79.376 1967 176 517 90.992 1968 145 608 88.160 1969 165 884 145.860 1970 201 694 139.494 1971 180 518 93.240 1972 167 579 96.693 1973 160 1.069 171.040

384 Appendix C: Individual labour rights Labour right origin Incorporation Nature of Conditions Comments of rural benefit workers Notice of Civil Code 1916 and CLT Maximum of 30 Length depended Mutual termination (1916) days notice on pay period requirement Estabilidade Lei Eloi Chaves ETR Just cause After 10 years of Lesser benefit than (just cause) (1923) protection service CLT Severance pay Lei Eloi Chaves ETR 1 month per year After 1 year of Termination (1923) of service service without just cause Previdencia Lei Eloi Chaves ETR Medical, legal, Paid by FUNRURAL (social assist.) (1923) pension, etc FUNRURAL underfunded Vacations with Sector by sector CLT 30 calendar days Regular Proportional to pay since 1925 per year attendance time of service Eight hour day Sector by sector ETR 8 hour day/48 25% overtime Lesser benefit than (Rev, of 1930) hour week premium CLT Maternity leave Berta Lutz (Rev. ETR 12 weeks leave Paid by FUNRURAL of 1930) FUNRURAL underfunded Equal pay Berta Lutz (Rev. ETR Equal pay for Same or Applies to males of 1930) the same work identical work and females Minimum wage Rev. of 1930 1940 Based on cost of Reviewed implemented in (1936) implementation basic needs annually 1940 Paid weekly rest 1949 statute 1949 statute 1 day per week Perfect Saturday work not day paid rest attendance scheduled 13th month 1962 statute 1962 statute 1 month pay Proportional for In response to bonus each December months worked CGT strikes

385 Appendix D: Regional minimum wage Minimum wage in cacao region / saldrio minimo regional National Ilheus, Itabuna, Itajuipe* Other cacao municipalities

year Month Month Day Hour Month Day Hour Effective currency

1963 21.000 16.500 550,00 68,75 15.000a 500,00a 62,50a 1/01 CR 14.600b 486,67b 60,33b 11.700c 390,00c 48,75c 1964 42.000 33.000 1.100 137,50 25.200 840,00 105,00 24/02 Cr

1965 66.000 51,600 1.720 215,00 39.600 1.320 165,00 1/02 Cr

1966 84.000 66,000 2.200 275,00 51.000 1.700 213,00 1/03 Cr

1967 105,00 82,50 2,75 0,34 63,75 2,12 0,26 1/03 NCr

1968 129,60 100,80 3,36 0,48 79,20 2,64 0,33 26/03 NCr

1969 156,00 120,00 4,00 0,50 98,40 3,28 0,41 1/05 NCr

1970 187,20 144,00 4,80 0,60 124,80 4,16 0,52 1/05 NCr

1971 225,60 172,80 5,76 0,72 151,20 5,04 0,63 1/05 Cr

1972 268,80 206,40 6,88 0,86 182,40 6,08 0,76 1/05 Cr

1973 312,00 240,00 8,00 1,00 213,60 7,12 0,89 1/05 Cr 1974 376,80/ 295,20 9,84 1,23 266,40 8,88 1,11 1/05 Cr 415,20 1/12

* Itajuipe was added to this sub-region in 1964 a : includes Itajuipe (until 1964), Belmonte, Camamu, Canavieiras, Ubaitaba, Coroaci b: includes municipalities outside cacao region c: includes other municipalities in the cacao region not listed in a above Appendix E: Portuguese-English Lexicon

All translations are my own, except as otherwise indicated. The original text in Portuguese or Spanish appears as a footnote. French quotations appear in their original language with my English translation as a footnote. Words and phrases with no precise English equivalent are used in their original language and the nearest English equivalent is provided in the lexicon. In translating from Portuguese to English, the use of gender neutral language is problematic. On occasion I have made gender-based assumptions from the social context. When referring to persons, a noun ending in the letter "a" refers to a female while the equivalent noun ending in the letter "o" refers to a male but is sometimes used to refer to both males and females.

Portuguese word or phrase ~ nearest English equivalent

Adamista ~ political follower of the Sa Adami family, the party of the gentry class administrador ~ administrator afilhado ~ godchild agravo de petigao ~ motion to quash agregado ~ worker resident on afazenda or tenant farmer arrendatdrio ~ tenant farming arroba ~ unit of weight equal to 14.688 kilos arrocho salarial ~ salary compression assalariado ~ salaried worker assiduidade integral ~ perfect attendance assiduidade total ~ complete attendance assistencia judiciaria ~ legal aid assistencialismo ~ business unionism bacharel, pi bachareis ~ lawyer or jurist bandeira ~ small pile of cacao barcaga ~ drying shed barcaceiro ~ drying shed operator barracao ~ truck system or fazenda store bicorio ~ electoral fraud branqueamento ~ racial whitening

387 burareiro ~ petty producer burguesia cacaueira ~ cacao bourgeoisie cabo de turno ~ foreman cacau mole ~ moist cacao seeds cacau pronto ~ dried cacao seeds camarca ~ judicial district campones ~ peasant candomble ~ an Afro-Brazilian religion carta precatoria ~ official letter of request carteira profissional ~ professional workbook cartorio ~ registry office casa grande ~ principal residence on afazenda caxixe ~ land fraud cepalistas ~ the economists from CEPAL cesfo basico ~ basic basket or basic needs clientelismo ~ patron-client relation co//za ~ pick or harvest colheita ~ pick colono ~ settler, historically a form of labour control in coffee production comarca -judicial district comisdo defabrica ~ factory commission compadre ~ relation between godfather and father of godchild companheiro ~ companion or spouse confissdo ficta ~ deemed admission of facts conjunto -joint enterprise contestacao ~ reply to claim contratista ~ contracted worker contribuicdo sindical ~ union contribution coronel, pi coronets ~ coronel coroneis do cacau ~ cacao colonels correqao monetaria ~ inflation adjustment corregedor-geral ~ a TST judge who inspects the regional tribunals cn'as Je casa ~ house servants cumplimiento coercitivo (Spanish) ~ coercive compliance cumplimiento ideologico (Spanish) ~ ideological compliance cumplimiento normativo (Spanish) ~ normative compliance dddiva ~ gift delegagao ~ branch office or delegation depositdrio ~ bailiff or bailee dependentistas ~ adherents of dependency theory desbravador ~ pioneer desbravamento ~ clearing the forest and planting cacao didrio ~ wages by the day diarista ~ day labourer direitos trabalhistas ~ labour rights dispensa ~ fazenda store or barracdo dispensa indireta ~ constructive dismissal dispositivo militar ~ political base within the military dispositivo sindical ~ political base within organized labour, dissidio coletivo ~ collective dispute dissidio individual ~ individual dispute edital ~ published notice embargo ~ objection empreitada ~ labour contract empreiteiro ~ piece work or defined task (in cacao region) empreito ~ contract for piece work or defined task engenho ~ traditional sugar plantation or sugar mill estabilidade -job security estabilitdrio ~ worker with estabilidade Estado Novo ~ New State esfa/a ~ oven estufeiro ~ oven operator execucao ~ execution or enforcement falsa parceria ~ fraudulent sharecropping arrangement fazenda ~ cacao plantation or farm fazendeiro ~ plantation owner y«ca/ ~ inspector or overseer freguesia ~ client relation, a variant of clientelismo funcao de confianca ~ position of trust goto ~ labour contractor gerente ~ manager Grapiuna ~ a person from the cacao region homem de confianqa ~ man of trust homologacao ~ approval imposto sindical ~ union tax impugnaqao ~ reply to counter-claim indenizagdo de antiguidade ~ severance pay initial ~ statement of claim Inquerito Administrativo ~ administrative inquiry Integralismo ~ a fascist movement from the 1930s Integralista ~ adherent to Integralismo movement Intentona Communista ~ Communist Uprising (1935) Intervencao ~ intervention or removal of union leaders or State governor or prefeito interventor ~ intervener or appointed union leader or Governor ox prefeito

389 inventariante ~ estate executor jagungo ~ hired gun jeito ~ know-how or knack Jornal Oficial ~ Official Journal juiz classista ~ class judge juiz de dereito ~ district judge _/wiz de trabalho ~ labour judge y'w/z togado ~ gowned judge or career judge Junta de Conciliagao e Julgamento ~ Board of Conciliation and Judgment Justiga do Trabalho ~ Labour Justice junta ~ board or court latifundidrio ~ large landholders latifundio ~ large landholding /e/ Jo cacau ~ law of cacao Zei Monstro ~ Monstrous Law Ligas Camponesas ~ Peasant Leagues liminar de estabilidade ~ portal of estabilidade or on the verge of job security mandado ~ writ or order mandado de citagao ~ writ of summons Mate Atldntico ~ Atlantic Forest minifundidrio ~ small landholdings Movimento Renovador Trabalhista ~ Trabalhista Renewal Movement naflor ~ cacao which is flowering nato ~ native or native born notificagdo por edital ~ notification by publishing a notice novo trabalhismo ~ the trabalhismo of General Castello Branco novos n'co5 ~ the nouveau riche class Operagao Limpeza ~ clean-up operation Oposigdao Sindical ~ union opposition movement Padrinho ~ godfather paqueiro ~ literally a hunting dog' but idiomatically an ambulance chaser paradeiro ~ period between harvests parceria ~ sharecropping arrangement parceiro ~ sharecropper pardo ~ mixed race, mulatto or a person with dark skin passeata ~ demonstration or march pelego ~ union leader who acts as agent of the Ministry of Labour. penhora ~ attachment of property to satisfy jugment periodo das cortes ~ harvest period Pessoista ~ political followers of Antonio Pessoa, the party of the novos n'cos piagava ~ a type of palm plant used to make brooms and brushes poder do commando ~ management rights portaria - regulation posse - possession or squatting posseiro - squatter prefeito - mayor prefeitura - the municipal government previdencia ~ social welfare system Procurador Adjunto ~ assistant procurator Procurador do Trabalho - labour procurator Procurador Regional - regional procurator questdo social ~ social question, social exclusion, social unrest quitacao ~ release recibo de quitagao geral - Receipt of General Release reconvencao - counterclaim reformas bdsicas - basic reforms relator -judge who reports on a case to the other judges renovadores - adherents of the Movimento Renovador Trabalhista reposicao salarial - salary adjustment reve/ ~ literally rebel, a respondent who fails to appear at the hearing of a complaint revelia ~ default in appearance at the hearing of a complaint revisor -judge who provides a second opinion to that of the relator rogagem - cleaning and weeding rogo,a - a signature made through an authorized agent, on behalf of an illiterate safra - harvest salario minimo - minimum salary sede - headquarters sertanejos - men from the sertao sertao - dry hinterland servigos acessorias ~ non-essential services servigos fundamentals - essential services sesmaria - feudal-style land grant sindicato - union or local union sindicato-fantasma ~ phantom union sitio - rural house with a plot of land tabeldo - a type of notary tarefa - a unit of measure in the region for weeding and cleaning a parcel of land temperada - drink or shot of alcohol tempordo - early harvest (April to August) terras devolutas - public lands or land belonging to the state terreiro de candomble - location for the practice of candomble trabalhador rural - rural worker trabalhismo ~ a political movement based on labour rights trabalhista ~ adherent of the trabalhismo movement unicidade ~ exclusive representation rights usina ~ sugar refinery vale ~ chit system vara ~ subdivision ofa junta vaqueiro ~ animal handler vassoura de bruxa ~ witch's broom, a cacao crop disease vogal pi vogais-juiz classista or class judge at the local junta level Appendix F: List of Acronyms

AIFLD ~ American Institute for Free Labor Development ANL ~ Alianga Nacional Libertadora or National Liberation Alliance CACEX ~ Carteira do Comercio Exterior or Exterior Commerce Fund CEPAL ~ Comissao Economica por America Latina or Economic Commission for Latin America CEPLAC ~ Comissao Executiva do Piano da Lavoura Cacaueira or Executive Commission for the Plan for Cacao Production CGT ~ Comando Geral dos Trabalhadores or Workers General Command CIC ~ Cacau Industria e Comercial S.A. CISCAI ~ Comissao Intersindical contra a Assiduidade Integral or Inter-Union Commission Against Perfect Attendance CLT ~ Consolidagao das Leis de Trabalho or Consolidation of Labour Laws CNBB ~ Conferencia Nacional de Bispos do Brasil or National Conference of Brazilian Bishops CNT ~ Conselho Nacional do Trabalho or National Labour Council CONTAG ~ Confederagdo National dos Trabalhadores Agricolas or the National Confederation of Agricultural Workers CSN ~ Companhia Siderurgica Nacional CTB ~ Confederagdo dos Trabalhadores do Brasil or Confederation of Brazilian Workers CUT ~ Central Unica dos Trabalhadores DNT ~ Departamento Nacional do Trabalho or National Labour Department DOPS ~ Departamento de Ordem Politico e Social or Department of Political and Social Order ETR ~ Estatuto do Trabalhador Rural or Statute of the Rural Worker FAP ~ Frente Agrdria Paulista or Sao Paulo Agrarian Front FBPF ~ Federagao Brasileira pelo Progresso Feminino or Brazilian Federation for the Advancement of Women FETAG ~ Federagao dos Trabalhadores Agricolas or Federation of Agricultural Workers

393 FGTS ~ Fundo de Garantia por Tempo de Servico or Guarantee Fund for Time of Service FIESP ~ Federacao das Industrias do Estado de Sao Paulo or Federation of Industries of the State of Sao Paulo FNB ~ Frente Negra Brasiliera or Brazilian Black Front FUNRURAL ~ social assistance fund for rural workers IAPI ~ Instituto de Assistencia e Previdencia Industrial or Institute of Industrial Social Assistance ICB ~ Instituto de Cacau de Bahia or Cacao Institute of Bahia INCRA ~ Instituto Nacional de Colonizagao e Reforma Agraria or National Institute for Colonization and Agrarian Reform ISI ~ import-substitution industrialization MNU ~ Movimento Negro Unificado or United Black Movement MST ~ Movimento Sem-Terras or Landless Movement OLT ~ organizagao por local de trabalho or workplace organization PCB ~ Partido Comunista do Brasil or Partido Communista Brasileiro (after 1962) PSB ~ Partido Socialista Brasileiro or Brazilian Socialist Party PSD ~ Partido Social Democratico or Social Democratic Party PTB ~ Partido Trabalhista Brasileiro or Brazilian Labour Party RSA ~ Repressive State Apparati SAR ~ Servigo de Assistencia Rural or Rural Assistance Service STF ~ Supremo Tribunal Federal or Federal Supreme Court STR ~ Sindicato dos Trabalhadores Rurais or union of rural workers SUDENE ~ Superintendencia do Desenvolvimento do Nordeste or Superintendence of Development in the Northeast SUPRA ~ Superintendencia de Politica Agraria or Superintendence of Agrarian Policy TRT ~ Tribunal Regional do Trabalho or Regional Labour Tribunal TRT5 ~ TRT for the 5th Region (Bahia) TST ~ Tribunal Superior do Trabalho or Superior Labour Tribunal ULTAB ~ Uniao dos Lavradores e Trabalhadores Agricolas do Brasil or Union of Growers and Agricultural Workers of Brazil UP ~ Unidade de Produgao or production unit WUNC ~ Tilly's acronym for Worthy, Unified, Numerous, Committed Appendix G: Note on Brazilian names

Brazilian names do not always follow strict rules to identify which is the family name. As a general rule, the last name may used for this purpose, although many individuals are known by a name other than their last name and the use of nicknames is common. Because so many last names are identical, I have generally used a unique first name or the name I know the person was called by, when telling the stories from the archive. With authors I have used the last name unless I am aware that they are generally known by another name.

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