I. INTRODUCTION

A two-person Human Rights Watch delegation traveled to Guatemala in January 1997. The visit focused on reports of the discriminatory treatment of trade unionists at the assembly plants there of the U.S.-based corporation Phillips-Van Heusen (PVH), and allegations of obstacles posed by the company and the Guatemalan labor ministry to the union's recognition for purposes of collective bargaining. Principally at issue in the latter was the union's claim to have secured the membership of more than one-fourth of the total workforce: Guatemalan law requires employers to negotiate with unions in such circumstances, but the company challenged the union's membership claims. Human Rights Watch determined to undertake the inquiry into the underlying issue of freedom of association in the two PVH plants in Guatemala plants in response to requests by the union there, their international supporters (notably the U.S./Guatemala Labor Education Project), and the company itself.

A preliminary two-day visit was made by Human Right Watch consultant Kenneth Anderson, an experienced human rights investigator, in November 1996. Professor Anderson concluded that there was evidence of anti-union discrimination, but was unable in that short time to determine whether the union's claim to have one-fourth of the workforce was well founded. In a preliminary finding he reported that he had seen no documentation to sustain the required 25 percent showing. Likewise, he was unable to assess the proceedings then underway in the labor ministry to resolve the matter. It was subsequently determined to conduct a more extensive inquiry. The cooperation of the company was a factor in going forward with this research. The chief executive officer of the Phillips-Van Heusen (PVH) corporation, Bruce Klatsky, a member of the Human Rights Watch Board of Directors, strongly supported a fact-finding visit by the organization and pledged his company's full cooperation with such a visit. This was subsequently forthcoming, as impromptu requests were made while in Guatemala to review personnel records, payroll information, and to meet extensively with managers at PVH's consolidated plant; these requests were granted without hesitation. Similarly, the company's implicit pledge to consider Human Rights Watch's findings carefully, however critical they might be, was an element in the background of this initiative.

Human Rights Watch's findings serve a broader purpose than the immediate focus of the investigation. This report helps identify ways in which forms of discriminatory treatment that are seemingly minor--when contrasted with physical abuse, threats of violence and illegal dismissals--may still undermine the right to free association of workers. The report highlights the need for safeguards against acts of anti-union discrimination. At the same time, the report seeks to provide guidance to employers with the will to remedy such abuses, by identifying a range of discriminatory measures that are less readily perceptible beyond the shop floor than the gross abuses--mass dismissals, arrests, "disappearances," murders--that make the headlines. The identification of indicators of such abuses, as well as possible remedies, is in turn proposed with a view not just to remedy the particular situation described in the case study here, but with a view to encouraging PVH and other corporations that have played a leading role in the formulation of human rights-based codes of conduct to deepen their implementation.

It can be expected that corporations will expand their global production in the years to come. A number will seek to establish and enforce standards to be observed by their wholly owned operations, contractors, subcontractors, and licensees. The codes of conduct developed by some of these corporations, notably PVH, Liz Claiborne, Levi Strauss, Reebok (to name only a few) in the garment and footwear industries, are an advance in this regard. However, this report highlights the need for greater safeguards of international standards on freedom of association in overseas assembly plants, particularly where national mechanisms for the protection of labor rights are flawed. It is the hope of Human Rights Watch that issues addressed here will be viewed far beyond the particular case study examined and the burgeoning overseas assembly sector of Guatemala's industrial establishment.

The practices documented in this report underscore the need for the companies that have taken a leadership role to ensure that the principles formulated by senior management are implemented in the workplace in a way that will increase respect for their workers' human rights. This is a particular challenge when a company is opposed to unionization but commits itself, as PVH has done, to express that opposition strictly through lawful means. Given the importance of the rights of free expression and association, codified in the International Covenant on Civil and Political Rights and International Labor Organization Conventions No. 87 and 98, it is critical that corporations carefully evaluate and, if need be, revise their practices in situations where organizing and collective bargaining efforts are taking place. To this end, Human Rights Watch is calling for greater attention by concerned executives in the corporations that have already made genuine advances in introducing human rights considerations into their operations. In addition, we hope these findings sound an alarm for those who have not.

A particular goal is to encourage those companies that already make real efforts to promote and to implement human rights-oriented codes of conduct, to take further steps to introduce practical safeguards so that freedom of association in the workplace is truly unfettered. To this end, this report draws upon Guatemalan law, international human rights law, and the human rights provisions of international labor law, and in particular the practical observations and decisions of the supervisory bodies of international labor law. It encourages a greater familiarity with the terms of human rights protection as enunciated in international labor law, notably the principle enunciated by the International Labor Organization's Committee on the Freedom of Association that "The right to bargain freely with employers with respect to conditions of work constitutes an essential element in freedom of association...." (Paragraph 782 of the Digest of Decisions and Principles of the Freedom of Association Committees of the Governing Body of the ILO).

The overall environment at the now consolidated PVH plant contrasted favorably with other plants visited by Human Rights Watch with respect to restrictions on workers' freedom of expression. At two other plants visited by Human Rights Watch, workers seemed to be operating under greater tension and pressure. At the PVH plant visited, workers appeared to have more liberty at their workstations and to be less intimidated by managers. This was reflected in both the demeanor of workers during Human Rights Watch's walks and conversations in production areas--workers seemed free to talk, smile--and in our observation that workers' had posted photocopied sheets of union slogans, notably "We want an agreement," above many of the workstations. Both observations had earlier been made by Human Rights Watch delegate Kenneth Anderson after his visit to Camosa II in November 1996, and union members confirmed that managers had not opposed their posting of union signs at their workstations. Human Rights Watch was also twice present when union supporters took part in brief, pre-planned sessions in which slogans such as "we want an agreement" were chanted; a routine which managers said they had determined to tolerate and which union members said had not generated retaliation.

Also notable was that PVH workers had free access in and out of the facility during the fifteen minute morning break and the lunchtime break when groups of workers congregated outside the plant. Union organizers--non-company employees--had uncontested access to this public space and engaged in lively discussion with PVH employees. Elsewhere in the maquila sector, workers require a pass from a high-level manager to leave their premises at any time during the work day. The tolerance of workers' rights to free expression and this aspect of freedom of association is extremely rare, if not unique, in Guatemala's maquila sector and much to the credit of PVH.

The physical conditions of the PVH facility, like the larger issue of working conditions, fell outside of the scope of the Human Rights Watch inquiry, as well as being an area in which the organization has no particular expertise. The delegates did, however, observe that the combined PVH facility in Guatemala City is amply lighted and seemingly well-ventilated, and workstations were equipped with ergonometric chairs and other equipment such as floor pads for those operators who stand. In addition, there are numerous water coolers on the floor.

The company's employee welfare programs were also beyond the scope of the inquiry but, these too, were widely viewed by independent observers as exceeding the norm and arguably at the forefront of the maquila sector. Managers expressed pride to Human Rights Watch in the company's support for a lunch room, at which the PVH subsidized hot lunches; a store, at which workers could make subsidized purchases; a clinic providing free medical attention on the plant's premises (which we were told is to include dentistry in the near future); a provision for interest-free loans; and generous provisions for ad hoc payments to be made to staff members or their families in the case of deaths and other family emergencies. Human Rights Watch was also informed by managers and by some of the workers interviewed, both in and outside the union, of additional benefits. These included Christmas baskets before the year-end holiday; 700 school bags with school supplies for workers with children; an annual children's Christmas party; and company sponsored activities on such occasions as Mother's Day.

Methodology

The Human Rights Watch team carried out a nine-day inquiry in which documentary evidence from the union, the company and the labor ministry was examined, numerous interviews were carried out and experts in Guatemalan and international labor law were consulted. At the labor ministry Human Rights Watch reviewed, page by page, the complete dossier on the union's collective bargaining proposal in the ministry's files. Team members interviewed the minister of labor and the inspector general of labor. Human Rights Watch spoke individually and privately with twenty-nine union workers. Some of these interviews were arranged by union organizers. Other union members asked Human Rights Watch directly for meetings immediately after the team members addressed a union meeting to explain the purpose of their investigation and answer questions. The team also met with ten non-union workers suggested by the company individually and in private. The team visited the PVH plant formerly known as Camosa II, and now expanded to house also the workforce of the former Camosa I plant, on three separate days, interviewing senior personnel, reviewing personnel files, and interviewing non-union staff. At the plant the team interviewed the senior officials, including the head of personnel and the head of production, as well as those with similar responsibilities at the former Camosa I plant. The company freely gave Human Rights Watch access to whatever documents and officials it sought. The team also met with labor lawyers, informed observers, and other maquiladora owners and managers as well. The names of all the employees interviewed, apart from the managers speaking to Human Rights Watch on the record, have been withheld.

Phillips-Van Heusen's Statement Accepting Human Rights Watch Recommendations

On Tuesday, March 11, 1997 Human Rights Watch presented a summary of its findings and its recommendations to Phillips-Van Heusen's Chief Executive Officer Bruce Klatsky, in New York. The recommendations presented were those set out in this report. After our presentation, he said that he accepted the recommendations and that he would act upon them promptly. He said he was traveling to Guatemala the following week and would move ahead in their implementation. The following morning, March 12, the company informed Human Rights Watch by fax of its formal response. The document, which is included in full as an appendix, said the following:

We invited Human Rights Watch to examine our operations in Guatemala and accept their findings and recommendations. The Human Rights Watch report describes how the general environment in Guatemala, the Guatemalan Government, union supporters, and personnel in our company all contributed to a climate which is contrary to our standards....Given this climate, and Human Rights Watch's finding that the requisite 25 percent of our workforce may support unionization, we have determined to recognize and negotiate with the union.

Human Rights Watch welcomes this decision by Phillips-Van Heusen, as setting a new standard for others in the corporate community who have pledged to incorporate human rights concerns into their operations. The measures proposed, Human Rights Watch hopes, will increase respect for human rights in Guatemala. In addition, it will challenge others throughout the overseas assembly industry to act with similar commitment. We also hope effective measures to protect freedom of association will become an increasing part of consumer expectations in the global marketplace.