The Minister of Labor should take the following steps with respect to the union's petition to negotiate:
1. The Minister of Labor should newly consider the merits of the petition of the union of Camisas Modernas, S.A., STECAMOSA, to initiate the negotiation of a collective agreement on working conditions with the employer.
2. This matter should be reconsidered on the ministry's own initiative, as earlier proceedings in this regard were suspended without cause, the sole matter of contention having been the strength of the union's membership in meeting the terms of article 51 of the labor code (by which a union's organization of over one-fourth of the workforce obliges an employer to negotiate).
3. A ministerial review of the substance of prior proceedings should consider all information relevant to the union's claim to have exceeded the one-fourth membership requirement under article 51, and its standing petition to initiate negotiations.
4. In making a determination, the ministry should take into account both the merits of the petition at the time it was made and subsequent developments. In this regard, the Inspectorate General of Labor should investigate reported patterns of discriminatory treatment prejudicial to union membership since that time, insofar as it may relate to subsequent resignations from the company by union members or pressures on staff to relinquish union membership.
5. Should the ministry be unsatisfied with the existing evidence of union membership upon revisiting the documentation available, a count of the union's members should be arranged so that the ministry may establish to its satisfaction the actual membership of the union.
6. Any count of the union's membership should take place in conditions in which workers are free to meet with labor inspectors without compulsion or intimidation; such counts should not take place in administrative offices of the employer or union offices.
7. The independence and integrity of a process to count union membership should be assured by the presence of independent observers, such as members of the Tri-Partite Commission for International Labor Affairs (Comisión Tripartita de Asuntos Internacionales de Trabajo) or the Bipartite and Tripartite Conciliation Commissions(Comisiones Bipartitas y Tripartitas de Conciliación), created by Ministerial Accord 001-97 of January 8, 1997, "for the non-judicial resolution of conflicts that arise between workers and employers in the Maquiladora Industry."
8. Any evidence of compulsion to force the resignation of union members since the union first submitted its draft agreement should be taken into account in the ministry's subsequent resolution of the matter of contention, the applicability of article 51. The ministry should use all of its faculties to ensure that the letter and intent of labor law are not subverted concerning the right of an organized workforce to negotiate with an employer.
To protect trade unionists in general from discriminatory treatment, the minister should instruct the General Labor Inspectorate:
1. To investigate with a view toward preventing employment practices in which trade union members suffer significant reduction in their incomes as a result of discriminatory practices.
2. In enterprises in which payment is calculated on a piece-rate basis to investigate payroll information on average weekly incomes of union and non-union members with a view to identifying patterns of discrimination.
3. To investigate as a priority payroll information on average incomes when allegations of discriminatory treatment are made, particularly in the course of labor conflicts and in periods in which enterprises are under court injunctions preventing dismissals without the permission of the courts.
4. To investigate patterns of resignations by union members from enterprises under injunctions that prevent dismissals without the approval of the courts, and allegations that major drops in income compelled such resignations.
5. To identify and investigate disparities in the compensation paid unionized and non-union workers upon ending their employment, including both those severance payments required by law and discretionary payments that may be made in accordance with a company's employment policies.
6. To examine as a priority company information on final payments made to all members of union executives and consultative councils upon their resignations.
The Phillips-Van Heusen company should:
With regard to the request by the union to begin negotiations of a collective agreement on working conditions:
1. In view of the Human Rights Watch findings that the union membership exceeded one-fourth of the workforce, sit down with representatives of the union as a legally recognized body, and discuss the best means to go forward with regard to its petition to negotiate.
2. Confirm the union's membership strength to the satisfaction of both parties, taking into account the union's most recent membership list as certified by the Ministry of Labor's labor registry. This should take place through union-company discussions, a renewed appeal to the Ministry of Labor to carry out a formal count or to rule on the basis of existing evidence, or other accelerated arrangements incorporating safeguards as an alternative to governmental inaction. If the Ministry of Labor does not renew its consideration of this matter, the company should decline to take refuge behind a dysfunctional governmental system for the protection of labor rights either by refusing to sit down with union leaders in their representative capacity or by doing nothing to resolve the present impasse until ordered to do so by a court or administrative authority.
3. Reaffirm the company's policy to eschew threats to close the operations in its Guatemala plant because of trade union organization. If the Guatemalan government fails to heed appeals to verify the union's membership, PVH should reconsider alternative ways of serving such a verification rather than threatening to withdraw from Guatemala.
4. Conduct a high level review of personnel policies at its Guatemala plant to ensure against the discriminatory treatment of trade union members, with a view to additional safeguards:
a. Introduce safeguards into the piece-rate system of remuneration so that discriminatory treatment of union members can be promptly identified and remedied.
b. Review the application of the system by which income is protected at a worker's average rate to identify and eliminate patterns of discriminatory treatment, so that certain sectors of the workforce are not unfairly subjected to the reduction of earnings to the minimum rate for extended periods.
c. Introduce safeguards into income protection so that its discretionary implementation on the shop floor does not facilitate discriminatory treatment.
5. Identify and remove managers responsible for discriminatory practices, while informing the workforce of this and making public any disciplinary actions taken to suppress anti-union discrimination.
6. Provide compensation to staff who are feared to have been the object of discriminatory treatment.
7. Investigate and repudiate any alleged threat or harassment by supervisory personnel, taking into account the real fears generated by Guatemala's tradition of intimidation and violence against trade unionists. Repudiation should replace unqualified denial as the initial response to such claims, pending investigations in which those alleged responsible for such statements or actions should play no part.
The Government of the United States of America should:
1. More comprehensively scrutinize the protection of labor rights in Guatemala's oversees assembly (maquiladora) sector, and in particular production by United States-registered companies and those importing goods into the United States.
2. Provide more thorough information on the respect for rights to freedom of association and collective bargaining in the State Department's annual reports on human rights practices, as well as specialized reporting by the Departments of Labor and Commerce.
3. Encourage the Guatemalan government to take steps to ensure that the protections against anti-union discrimination now established in Guatemalan law and required by United States legislation for qualification for trade benefits under the General System of Preferences are implemented.
4. Maintain under review Guatemala's qualifications for trade benefits under the General System of Preferences, with particular attention to the functioning of the Ministry of Labor and its various offices in the implementation of labor law and regulations. Particular scrutiny should be given to the virtual exclusion of trade unions from the over 600 large plants in the overseas assembly sector-Phillips-Van Heusen is one of just five plants with unions-and the complete absence of collective agreements anywhere in this sector.