This report applies two overall measures to evaluate the NAALC. First and foremost, it gauges the extent to which the state parties have identified and corrected non-compliance with the range of NAALC obligations. This, after all, constitutes the NAALC's central promise, both political and statutory. Although the side agreement does not require outside complaints to spur governmental action on non-compliance with NAALC obligations, to date no country has independently initiated consultations regarding possible violations of the NAALC. Therefore, this report relies on the content and outcome of cases filed by nongovernmental groups that allege non-compliance with one or more of the accord's obligations. It analyzes the twenty-three complaints filed using the NAALC, the reports and other documentation produced by the governments, and the content of programs designed to address the complaints.
Of the twenty-three cases filed using the NAALC, fourteen alleged violations in Mexico, seven referred to alleged violations in the United States, and two concerned Canada. The cases raised two types of questions regarding the parties' respect for the side agreement. The first relates to alleged violations of one or more of the NAALC's eleven labor principles. The second has to do with alleged violations of one or more of the accord's seven labor rights objectives and obligations. This chapter presents information in an obligation-by-obligation format, including a principle-by-principle analysis within the section on the requirement that the parties effectively enforce their own labor law.
Together, the three NAOs have issued a total of twelve case reports, recommending ministerial consultations-that is, government-to-government talks-in all but one instance. As a result of such consultations, Mexico and the United States have adopted six ministerial agreements covering nine separate cases; four of those cases were against the United States, and five against Mexico. Canada is currently negotiating an agreement with Mexico.
A second measure used here to evaluate the NAALC relates to how the signatories have addressed the linkage between trade and labor rights. That is, this report reviews the extent to which the parties have attempted to understand and interpret the NAALC's obligations. The accord does not expressly require that the parties do this, but given the vague nature of the obligations, the signatories necessarily must do so in order to understand the nature of the obligations they undertook by signing the accord.
This report does not seek to evaluate the cooperative activities undertaken under the auspices of the accord, except to the extent that they resulted directly from a NAALC case. These are said to have been plentiful and productive, and to be a positive result of the NAALC. However, while improved technical expertise and the promotion of greater understanding of labor issues between Canada, Mexico, and the United States are important, they are no substitute for policies designed to improve labor rights conditions. In a similar vein, this report does not focus on the secondary benefits of NAALC cases, such as increased cross-border linkages and cooperation between labor unions and human rights groups, and the way specific cases have led to politically motivated results outside the framework of the NAALC. After all, the NAALC was not crafted to provide such benefits, and even some of the most widely cited secondary benefits have proven, upon detailed review, to have been far less important than suggested.
As discussed in detail in the following sections, every case submitted to an NAO has included the allegation that the government in question has failed to enforce its labor law with respect to one of the eleven labor principles enunciated in the accord. Little has been done, though, to overcome structural problems found in enforcement mechanisms, even when serious questions have been raised through the NAO submission process. Concerns about enforcement mechanisms and the effectiveness of enforcement actions have been addressed through the NAO consultative process in a variety of ways, mostly focusing on training and exchange of information, but they have not addressed the broader structural problems affecting enforcement.
Compared to enforcement concerns, fewer allegations have been lodged related to other NAALC obligations. Nonetheless, serious questions have been raised about access to, and the fairness of, labor tribunals in Mexico and the United States. Little has been done to address these concerns, however, beyond holding seminars to discuss the problem. This key to labor law enforcement-access to impartial tribunals-has received scant attention and no remedial action under the NAALC.
For the NAALC case mechanisms to be effective in improving the labor rights situation in the three countries, NAOs and labor ministries would need to take consistently strong action as cases move through their key stages: initiation and acceptance of cases; gathering information related to complaints; reporting on the issues raised; detailing the findings; annunciation of recommendations; the content of ministerial consultations; development of ministerial agreements; and follow-up, including taking steps to ensure that ministerial agreements are carried out and, if they are not, adopting measures such as the establishment of Evaluation Committees of Experts to address the problems unresolved through ministerial consultations.
Even strong reporting can be inadequate in promoting positive change in the labor rights situation in the state parties if at any of the subsequent stages the relevant authorities take weaker actions. Similarly, without detailed explanations of the reasoning behind the parties' actions and findings in specific cases, the NAALC's obligations will remain vague, and the link between labor rights and trade-the key to understanding how well the parties have fulfilled their obligations under the accord-will remain unclear.
As the following article-by-article analysis makes clear, the three state parties have largely failed to avoid these pitfalls.
The policy makers who use the NAALC should take its objectives, separate from its obligations, as an aid to interpreting ambiguous provisions of the accord, and as general guidelines for decision-making. The U.S. NAO, for instance, has explicitly cited the objectives as a rationale for deciding to proceed with or declining to review cases. In this context, it has justified its actions based on what it believes would or would not "further the objectives of the NAALC."87 Defining the meaning of the NAALC's objectives, therefore, is an important way to clarify the decision-making processes based on them. In addition, for the parties to measure their success or failure in achieving the important goals set out in the objectives, they must actively work to understand how action or inaction on the part of the state parties affects these objectives.
Unfortunately, even when the NAALC's objectives have been reviewed by the NAOs in the context of specific cases, or used to justify decision-making, the NAOs have failed to interpret them.
Five cases have raised questions regarding a signatory's failure to take steps in line with the accord's objectives. Two of the cases, both related to the same alleged violations in the Echlin auto parts plant in Mexico, were ultimately reviewed by the U.S. and Canadian NAOs. Of the other three cases, two were not accepted for review and the third was too recently filed at this writing to allow an analysis of its handling.88 The U.S. and Canadian NAOs reviewed the Echlin cases separately, but both found serious problems with Mexican enforcement of freedom of association law and raised questions about the fairness of the labor tribunals. 89 However, neither agency explained how the specific problems it had documented had hindered the accord's objectives, or how ministerial consultations would advance them.
Petitioners in four complaints, only two of which have ultimately been reviewed by an NAO, have cited the obligation of state parties under the NAALC to have high labor standards, and to improve those standards. The issue was addressed in detail by petitioners in the Washington State apples case, filed with the Mexican NAO in August 1999, and in the Echlin case filed with the Canadian NAO (although the Echlin case was also filed with the U.S. NAO, the version presented in the United States did not raise Article 2 issues).90
The requirement that the signatories maintain high labor standards can be understood as a general duty clause parallel to such provisions of U.S. and international law.91 It is important for the parties to use this article to define the reach of the NAALC. Although the NAALC's eleven labor principles serve to provide a broad definition of what "high" labor standards should consist of, they are too general to incorporate each specific law and situation that could exist in the three countries covered by the agreement.
General obligations are intentionally broad and vague, requiring the parties to the agreement to work actively to define their reach if they are to be fulfilled. In analogous situations in which general obligations are created in domestic or international law, formal attempts have been made to interpret specific conditions in light of those general obligations.92 Such an effort within the framework of the NAALC would also help further the discussion on linking labor rights and trade. Doing so would not require the standardization of domestic legislation. Rather, the state parties should grapple with how this NAALC obligation can be factored into the establishment of domestic standards.
Further, the NAALC's requirement that the state parties strive to improve their labor law standards implies, at a minimum, that labor standards in the three countries are not to remain static. Yet, how to define what constitutes inadequate action to improve the content of labor laws remains an open question, and the only way to determine whether the parties are fulfilling this obligation is to interpret this portion of the NAALC.
In practice, the NAOs have interpreted article 2 differently. Mexico has rejected the implication that this article requires the parties actively to improve labor standards where they are not "high," while the Canadian NAO has said that article 2 should be used as a measure of how labor standards are devised. The U.S. NAO ignored the issue in the only case it received in which the article was cited.
In the Washington State apples case, petitioners contended that the United States does not have high labor standards in an array of areas. They argued that it lacks standards altogether for a majority of hazardous chemical products; lacks ergonomic standards; and fails to establish standards relating to the right to information and medical supervision.93 They further alleged violations of this obligation with respect to the protection of migrant workers, arguing that U.S. law provides lesser protections for migrants than it does for non-migrants, and that agricultural workers are excluded from many labor protections under U.S. labor law.94
The Washington State apples case also laid the groundwork to test the meaning of the article 2 requirement that the state parties "continue to strive to improve" their labor standards. "There has been no essential improvement in the law's protection of the rights of workers to organize since the [National Labor Relations Act] was adopted in 1935," according to petitioners. "Almost all important changes to the law, beginning with the Taft-Hartley Act of 1947, have increased the power of employers to prevent the union organization of workers."95
Unfortunately, in its August 1999 case report, the Mexican NAO limited itself to repeating the allegations of the petitioners and to listing the provisions of the NAALC that were said to have been violated. It provided no findings or conclusions of its own. The Mexican NAO went on to recommend ministerial consultations in order to obtain further information on steps taken by the United States to enforce the rights of workers in the agricultural sector, but it did not seek consultations on article 2. Taking advantage of the lack of standards for NAO reporting, it did not expressly state why it left article 2 out of its recommendation despite so much detailed information provided by the petitioners.
The Canadian NAO took a strikingly different approach to article 2. Faced with information regarding unfair practices for union voting in the Echlin case, in its report on the case the Canadian NAO said that Mexican tribunals should interpret their own laws with article 2 in mind. The Canadian NAO suggested that secret ballots for unionization votes provided greater protection for workers' rights, but stopped short of saying that such ballots were required for Mexico to fulfill its obligations under article 2. However, the Canadian NAO noted that if alternatives to secret ballots were used by Mexican labor tribunals, "the onus is on the [tribunal] to show that they are equally effective in protecting the accuracy and integrity of the [vote] and that they meet the obligations stemming from Article 2 of the NAALC."96 This type of reasoning is essential to give meaning to the NAALC.
Only one petition submitted to the U.S. NAO raised an article 2 issue. In that case-the Canadian Post case-petitioners argued that a federal law improperly restricted the rights of rural letter carriers by prohibiting them from organizing. Demonstrating how the lack of standards regarding when to accept cases can lead to arbitrary decision-making, the U.S. NAO rejected the case on the grounds that it "does not raise questions regarding the application or enforcement of the law."97 Nowhere in existing NAALC or U.S. NAO guidelines is such a standard laid out. In fact, the NAOs can accept for review any case related to "labor law matters" in a signatory country.98
The NAALC requirement that each party effectively enforce its own labor law has been cited in every petition filed under the accord. The U.S. NAO has issued eight reports covering this issue, while the Mexican NAO has addressed it in four case publications. The Canadian NAO handled this issue in the single two-part report it released on the Echlin case.
This obligation is key under the accord, because a party's pattern of practice of failure to live up to it could lead in certain circumstances to the creation of an Evaluation Committee of Experts. A persistent pattern of non-enforcement could lead to the creation of an arbitral panel to consider sanctions in some labor law issue areas. Even without the formation of these NAALC bodies, the accord could be used by the parties to resolve problems related to the enforcement of the full range of labor principles recognized by the accord. If the parties were to interpret the NAALC with an eye toward ensuring that problems with enforcement are remedied, strong cases should lead to findings of non-compliance, and ministerial consultations should lead to agreements that resolve the problems identified. At the same time, the reasoning contained in NAO reports should contribute to an understanding of the NAALC's obligation to enforce labor laws.
Cases submitted under the NAALC have received a wide variety of responses from the NAOs. The U.S. NAO has occasionally failed in its reports to address difficult enforcement issues, while at other times its strong findings related to enforcement have been followed by weak ministerial agreements. The Mexican NAO has refused in all but its first case to do more than repeat the enforcement-related allegations made by petitioners. Its failure to draw conclusions or link its requests for ministerial consultations with specific goals for improving enforcement problems has weakened the NAALC in practice.
The Mexican NAO has suggested, in fact, that the NAOs are not empowered to conduct in- depth analyses of the failure to enforce labor law. This, it has asserted, is the purview of an Evaluation Committee of Experts. This interpretation short-circuits the NAALC, because lowest-tier labor rights-freedom of association, the right to bargain collectively, and the right to strike-cannot be considered by an ECE and, therefore, could never be analyzed in depth if the Mexican NAO were correct in its interpretation. Further, a party can only request the appointment of an ECE after ministerial consultations fail. For ministerial consultations to reach such an impasse, however, the complaining government, not an ECE, would have had to have done an in depth analysis of an enforcement issue.
Canada's single case report was strong in criticizing labor law enforcement in Mexico; at this writing, the two governments have not concluded ministerial consultations.
By far, more NAALC cases have included allegations of violations of the right to freedom of association and the right to organize than any other labor principle recognized by the accord: fifteen out of twenty-three. In the NAALC context, ten cases have been aired in which Mexico has been accused of failing to effectively enforce its laws protecting freedom of association and the right to organize. Three cases have alleged U.S. failure to enforce this provision of the NAALC, and two accused Canada of non-enforcement.
Freedom of association rights are crucial to the protection of other labor rights, because they underpin workers' rights to defend their employment-related interests. A large body of international jurisprudence exists in this subject area.100 The importance of this right has contributed to criticism that its violation under the NAALC cannot lead to any enforceable remedy.
Complaints against Mexico
The failure of ministerial consultations to follow up on good U.S. NAO information gathering with solid work programs to ameliorate problems was clear in the Sony case, for instance. The U.S. NAO called for ministerial consultations on the case, "Given that serious questions are raised herein concerning the workers' ability to obtain recognition of an independent union through the registration process with the local [labor tribunal] . . . ."101 This finding came in response to information documenting company intimidation of union members, including the dismissal or demotion of union activists. Further, according to information provided by petitioners, the labor tribunal condoned unfair voting to the detriment of the workers.
The ministerial agreement, however, called for several conferences to be held at which representatives of Canada, Mexico, and the United States would exchange views on union registration systems in their own countries. In a report on those meetings, the U.S. NAO concluded that the mechanisms in Mexico designed to enforce labor law related to union registration demonstrated "weaknesses and inconsistencies."102 Nonetheless, nothing was ever done to address those weaknesses and inconsistencies.
In the Sony case, though, the U.S. NAO rightly pointed to a set of important but limited secondary achievements resulting from the process: "The dialogue which is taking place on this sensitive labor issue is a positive development. The knowledge which has been gained by each government and disseminated to the public is a critical stepping stone towards understanding the ways in which labor law enforcement can be improved in each country."103
In the Fishing Ministry case, the U.S. NAO also gathered detailed information from petitioners and the Mexican government regarding the allegation that Mexican law violated freedom of association standards by limiting to one the number of unions that can exist in any government ministry. In accepting this issue for review, the U.S. NAO showed admirable breadth of criteria, given that the Industrial Relations Committee of the International Council for International Business argued that the NAALC presupposed the validity of domestic laws and that the U.S. NAO should not consider issues that challenged the content of domestic standards.104
The petition also argued that Mexico was in violation of ILO freedom of association standards, and that because such standards were considered part of Mexico's domestic law, the ILO standards should be considered by the U.S. NAO as part of the domestic labor law violated by the country under the terms of the NAALC. Finally, petitioners argued that authorities failed to enforce the freedom of association rights of the workers who tried to form the union, showing that workers who did so were denied permission to organize while a pro-government union was permitted to do so, or were threatened with retaliation for their union work. Even when the workers finally won in court the right to form a union, they were not permitted to function as a formal union.
The U.S. NAO's report on the case, however, contained no analysis of the petitioners' allegations that union members were unable to organize or enjoy the rights they eventually won in court. Further, it did not address the claim that the government's failure to recognize the court victory constituted the failure to effectively enforce freedom of association law. Instead, the U.S. NAO focused on the fact that the union had had access to courts and eventually won the right to register as a union, as if the formal processes were tantamount to effective enforcement. The U.S. NAO rejected a request by petitioners to review the case again.
With respect to the argument that ILO standards should be considered part of Mexico's domestic labor law, the U.S. NAO said it found contrary opinions in Mexico on the topic. On this issue alone the U.S. NAO called for ministerial consultations, which led to a conference on the relationship between international and domestic labor law in Baltimore, Maryland.105 At this, only government-appointed speakers were invited to present their views, and no commitment to act upon any information given or received at the conference was undertaken. Even to the extent that the U.S. NAO could have made progress in clarifying the NAALC's reach by pushing for consensus or debate on the issue of international standards as domestic law, through its weak ministerial agreement, it failed to do so.
Interestingly, this case led the Clinton Administration to claim that the NAALC had led to positive freedom of association results. "[The] submission process has led to concrete results in several cases," the Administration asserted in a 1997 study on NAFTA, "particularly with respect to ensuring freedom of association."106 The Administration made a similar claim in 1999.107 The Administration had in mind the fact that the union won the legal right to form as a second union within the Mexican government ministry. "This union's predicament had been reviewed and reported on previously by the U.S. NAO. This decision and the Supreme Court decision [permitting more than one union to organize in a ministry] signaled a departure from a significant restriction on the ability to organize in the public sector, existing since 1960."108
The U.S. government correctly pointed out that a fundamental victory for freedom of association took place when the Mexican Supreme Court ruled that Mexican labor law violated freedom of association standards by limiting to one the number of unions that could exist in any government ministry.109 Claiming credit for it through the NAALC, however, far overstates the role played by the U.S. NAO, particularly since the United States did not so much as criticize the law or seek to engage the Mexican government to amend it.
Some benefit to the union did occur, however. "We didn't derive direct benefit from the case," according to Roberto Tooms, the secretary general of the union at the time the case was before the U.S. NAO. "The benefit was political. It helped push the labor tribunals to give us favorable responses, and it showed the workers that it was not useless to continue fighting."110 Further, the legal road blazed by the union-establishing the precedent that more than one union can exist in a ministry-has been followed by workers in other government sectors, including the air traffic controllers and workers in the agency that handles tax revenues.
Unlike its findings in the Fishing Ministry case, the U.S. NAO identified serious freedom of association problems in the Han Young and Echlin cases. In the former, the NAO found, "The workers in question have expressed their union preference through two representation elections, strikes, and fasts, and in the face of determined opposition from the company, including intimidation, threats, and dismissals." The U.S. NAO went on to note the link between labor tribunals and freedom of association: "The placement, by the Tijuana CAB, of obstacles to the ability of workers to exercise their right to freedom of association, through the application of inconsistent and imprecise criteria and standards for union registration and for determining union representation, is not consistent with Mexico's obligation to effectively enforce its labor laws on freedom of association in accordance with Article 3 of the NAALC."111
In the Echlin case, the U.S. NAO determined:
In both cases, the U.S. NAO recommended ministerial consultations, and an agreement was signed with Mexico in May 2000 (see Appendix I). With respect to the freedom of association issues raised in the cases, the Mexican government committed itself to "promote the use of eligible voter lists and secret ballot elections in disputes over the right to hold the collective bargaining contract," and agreed to hold a public seminar in Tijuana on freedom of association issues. The link between labor tribunals and freedom of association uncovered in the Han Young case would be addressed through a public seminar in Mexico at which labor tribunal law and practice would be discussed by representatives of the three state parties to the NAALC.
The Han Young union's lawyer dismissed the practical state-level impact of the government's promise to promote secret ballots. "Here, we still vote by voice in front of everyone," he told Human Rights Watch.113 The public seminar in Tijuana, held in June 2000, was the scene of a violent scuffle between members of contending unions from the Han Young plant. The session on labor tribunals had not been held at this writing, but the mere discussion of law and practice held little hope of leading to resolution of the problems identified by the U.S. NAO.
Complaints against the United States
Based on the report, the Mexicans sought ministerial consultations, but the content of the resulting ministerial agreement was weak (see Appendix I). The U.S. Secretary of Labor agreed to keep his Mexican counterpart informed on the legal proceedings in the United States about the plant's closure, and the NAALC Secretariat would be instructed to study the effects of sudden plant closings on the principle of freedom of association and the right of workers to organize in the three NAALC countries. In addition, the U.S. Department of Labor would hold a public forum in San Francisco at which any interested party could publicly express an opinion on that subject.115
The petitioners in the case found the Secretariat's report on plant closings far from helpful: "The report failed to address even the most basic issues regarding plant closings and worker's rights. In fact, the [Sprint] case was not even mentioned among the examples cited in the report. The report was essentially a summary of existing labor law, an overly rosy view of how that law is administered, especially in the U.S., and recommendations that address bureaucratic issues, not the real needs of workers."116
In the Solec case, petitioners accused the company of using tactics such as threats of firing union activists to counter an organizing effort, and alleged failure by the United States to uphold its freedom of association law because it did not stop this. The ministerial agreement between the Mexican and U.S. governments did not address the problems in the Solec case. The failure of the Mexican NAO to explain its reasoning, or to include findings and conclusions, made it impossible to know whether the ministerial agreement's weakness stemmed from a belief that the allegations were without merit, or if it indicated that the state parties simply did not wish to address the problems highlighted by the petitioners.
In the Washington State apples case, petitioners alleged problems including illegal threats of firing and plant closings, bribes, and pressuring workers to wear anti-union buttons.117 The apples case also raised important questions regarding enforcement of the right to freedom of association, because it carefully reviewed violations of this right in the context of U.S. laws and enforcement mechanisms. The case argued that NLRB budget cuts hampered the work of the enforcement agency, while unnecessary complications and unjustified delays effectively nullified the freedom of association protections that exist for agricultural workers: "From the beginning, employers know that if workers win the case in the end, the remedies and settlements are almost insignificant."118
The Mexican NAO should have used this opportunity to explore the complex relationship between law, enforcement, and enjoyment of labor rights. Such was not the result, however. The Mexican NAO passed no opinion on the allegations made by petitioners, and, with respect to freedom of association, the ministerial agreement focused only on holding outreach sessions with migrant workers.
While the NAALC has led to substantial detail and analysis related to freedom of association, the right to bargain collectively has led to only cursory evaluation under the accord. Six NAALC cases have been filed alleging violations of the right to bargain collectively: two accused the United States of failing to enforce its laws on the subject, three focused on Mexico, and one related to Canada.
The issue in Mexico is important, because of the prevalence of "protection contracts," whereby a pro-company union signs a contract with employers without the input or knowledge of workers. Attempts to organize or bargain collectively are often frustrated when workers find out that a contract about which they knew nothing already exists. In a report issued in the Executive Air Transport (TAESA) case in 2000, the U.S. NAO recognized that the problem of unrepresentative collective bargaining agreements "is even more significant given the historical practice in Mexico of collective bargaining agreements being signed with employers at the inception of the company and routinely renewed."119
An unrepresentative bargaining agreement was precisely the issue in the Han Young case. Workers who tried to organize at the auto parts factory in 1997 had to fight against a pro-management union that had never represented them in the past. "As of April 1997," the petitioners wrote, "the [existing union] had never held a meeting with workers, never shown workers a copy of the contract with Han Young, and did not make its existence as contractual representative known to the workers."120 The workers eventually obtained the collective bargaining contract, but doing so was far more difficult than it should have been under the law. As the U.S. NAO found, "This review indicates that a group of 120 workers at Han Young obtained union representation only after extensive litigation, intervention by the Mexican Federal labor authorities, two representation elections which they won, international public attention, and extensive media coverage."121
Despite these victories, the workers remain unable to exercise their collective bargaining rights. When the factory refused to honor the contract, the workers went on strike. Then, in February 1999, the factory was sold and the striking workers replaced, according to the union's legal representative.122
The U.S. NAO recommended ministerial consultations to discuss this and other issues with the Mexican government. The outcome of the consultations, concluded in May 2000, included a potentially important commitment from the Mexican Department of Labor to promote collective bargaining rights. The agreement, reproduced in Appendix I, stated that the department "will continue promoting the registry of collective bargaining contracts in conformity with established labor legislation. At the same time, efforts will be made to promote that workers be provided information pertaining to collective bargaining agreements existing in their place of employment and to promote the use of eligible voter lists and secret ballot elections in disputes over the right to hold the collective bargaining contract."
This potentially important outcome has been hampered by a lack of follow-up at the local level. None of the collective bargaining activities promised under the agreement have been carried out on a local state level, according to the Han Young union's lawyer.123 Although some federal initiatives are said to be in progress, most businesses are under the jurisdiction of local state labor tribunals; therefore, their workers would not benefit from federal action.124
In the TAESA case, the U.S. NAO did not ultimately determine that any collective bargaining violations had taken place in Mexico. Petitioners had noted that flight attendants at TAESA wanted the Association of Flight Attendants of Mexico (ASSA) to represent their specific interests related to safety, inadequate training, low wages, and problems related to non-payment of financial obligations including overtime. However, an airline-wide collective bargaining contract already existed.
The U.S. NAO determined that Mexican labor law does not specify exactly how craft unions can be formed when a company-wide agreement already exists. Nonetheless, the U.S. NAO did suggest that existing Mexican law and its interpretation may not meet the NAALC's standards related to collective bargaining: "Further information would be helpful in determining how the precedent applied in this case is consistent with the [Federal Labor Law] provisions recognizing craft union rights and how Mexican law provides for a craft union to seek representation of workers in its craft where a company-wide collective labor agreement already exists."125 The most that could come from this provision of the ministerial agreement would be information, as the Mexican government did not agree to take any action to remedy any problems related to collective bargaining.
Two cases lodged in Mexico raised collective bargaining issues in the United States-the cases of Solec and the Washington State apple industry. In the former, workers at the Carson, California, plant argued that their ability to bargain collectively was irreparably harmed by slipshod NLRB actions-including unjustified delays in overseeing a union election and ballot count-that allowed the company the time to engage in abusive anti-union tactics.126 The petition accused the NLRB of being bought off by the company.
The Mexican NAO's report on the case did not address the issue of collective bargaining, but it did ask that this issue be included in ministerial consultations. The ministerial agreement signed on May 18, 2000, called for the U.S. government to provide additional information to Mexican authorities on issues related to collective bargaining, but the public initiatives planned in the agreement all focused on migrant workers, in response to other cases filed against the United States. In the end, this complaint led to no substantive programming on the issue of collective bargaining in the context of Solec-partly because the Mexican NAO did not address the issue in its report, and partly because the governments did not address it in their agreement in any way beyond providing information from one government to the other.
In the apples case, the petitioners argued, "Rather than accepting the will of the majority to join the union and be predisposed to negotiate labor conditions with the union, the companies engaged in a campaign of threats, intimidation, coercion and discrimination to overrule the majority obtained by the union, and to subvert the workers' rights to freely associate, organize and engage in collective bargaining."127 Petitioners identified structural problems with enforcement mechanisms in the United States that permitted such problems to continue.
The Mexican NAO report on the case limited itself to repeating the allegations of the petitioners and listing the NAALC principles that may have been violated. Nonetheless, the Mexican NAO sought ministerial consultations on issues raised by the petitioners, including collective bargaining, and recommended that collective bargaining be included in the ministerial consultations. The ministerial agreement, signed in May 2000, included multiple opportunities for educating migrant workers about their rights but nothing designed to address the structural problems with enforcement of labor laws identified by the petitioners.
Two petitions alleging violations of the right to bargain collectively have been rejected under the NAALC. The first, filed in the United States in 1998, accused the Canadian government of violating this right when the Canadian Parliament amended the Canadian Post Corporation Act in 1985 to define rural letter carriers as independent contractors, thereby excluding them from the act's protection of freedom of association and the right to bargain collectively.128 The U.S. NAO did not provide detailed reasoning for rejecting the petition.
The Canadian government refused to hear a collective bargaining case lodged against the United States in 1999.129 Petitioners argued in their April 1999 brief that the United States had violated its obligation under article 3 to encourage labor-management cooperation.130 The Canadian NAO received information on the case from the U.S. NAO and the AFL-CIO, then determined that the information at its disposal did "not indicate a failure to comply with the obligations of the Agreement."131 Lacking any formal appeals procedure, the Canadian NAO did not accept the petitioners' request for reconsideration.
It is impossible to apply substantive standards to the Canadian NAO's refusal to review the case, because no such standards exist. Petitioners, however, raised an interesting point about the scope of the NAALC's reach into issues related to employee-management relations. The preamble to the accord notes that the signatories resolved to strengthen labor-management relations through greater dialogue and to encourage workers and employers to work together in maintaining "a progressive, fair, safe and healthy working environment."132 Petitioners had raised concern about NLRB rulings penalizing a company for fostering worker-management committees on the grounds that management dominated the committees. The NAALC permits a review of any issue relevant to the accord, whether or not a violation of NAALC obligations took place; the Canadian NAO thereby missed an opportunity to explore new territory.
The protection of the right of workers to strike in order to defend their collective interests.
Only one case has alleged violation of the right to strike, and it was not accepted for review by the U.S. NAO. In the case, the Association of Flight Attendants (AFA) of the United States filed the case on behalf of Mexican counterparts. When flight attendants at AeroMéxico went on strike in 1998, the Mexican government intervened by executive order to take over the airline and end the strike. Authorities argued national security concerns in taking their action.
The U.S. NAO declined to hear the case, arguing that the takeover was carried out according to Mexican law and that, "Further, subsequent to the issuance of the executive order, the flight attendants returned to work and negotiated an agreement with the company settling the strike."133 Without any further analysis, the U.S. NAO determined that hearing the case would not further the interests of the NAALC and would not, therefore, be the subject of review.
In responding to the NAO, the Association of Flight Attendants alleged that the agreement to end the strike was negotiated under duress and after the workers had been forced to give up their right to strike.134 "We never questioned the validity of President Zedillo's executive order under any of the various instruments available to the president," the AFA complained. "What we asked the NAO to review was whether in the exercise of such undeniable constitutional powers, the President of Mexico caused injury to Mexican labor laws; internationally-accepted labor standards and conventions that protect the Mexican workers' right to strike."
In response to the AFA, the U.S. NAO said that it had sought information from the Mexican government and U.S. embassy, and worked with the office of the U.S. Solicitor General to "assure that relevant legal issues were appropriately considered."135 Information from the AFA and its Mexican counterparts was not sought after the petition was filed, although the U.S. NAO pointed out that it had been in contact with representatives of both prior to the submission of the complaint.136 Finally, the U.S. NAO reminded the AFA that the secretary of the NAO has discretion whether to accept or decline a submission and that no appeals process exists.
The U.S. NAO did promise in its original rejection of the case that it would "undertake a research project to evaluate how the three NAALC countries reconcile the issue of the right to strike with national interests of safety, security, and general welfare."137 The fact that the U.S. NAO would consider the subject worthy of a special report belies the argument that nothing was to be gained from taking this issue on for NAO review. In any case, at this writing, no special report had been published.
No cases have been filed using this article.
Three NAALC complaints have explored this principle: the Washington State apples and DeCoster Egg Farm cases, reviewed by the Mexican NAO, and the Canadian Post case, which the U.S. NAO did not accept for review.
In the Washington State apples case, the petitioners alleged, "Government officials in Washington State discourage workers from claiming compensation for pesticide-related illnesses, and reject such claims at a rate higher than that of other claims."138 In the DeCoster case, the petitioners made only a passing reference to the problem.
In its reporting, the Mexican NAO subsumed the issue of compensation under the rubric of safety and health, even though that labor principle stands alone within the NAALC. When it asked for ministerial consultations, the Mexican NAO did not raise the issue of workers' compensation among the matters it wished the consultations to address.139 Despite these weaknesses in reporting, the ministerial agreement included the topic among those to be addressed in public outreach sessions in Washington State and Maine.
The ministerial agreement, combining consultations on the DeCoster, Washington apples, and Solec cases, provided potentially important opportunities for workers to learn about their rights and express their views, but it contained nothing to address the central concern of the petitioners on the issue of compensation: that employers discourage workers from seeking compensation, and that authorities disproportionately reject compensation claims.
The protection of migrant workers has arisen in four cases brought against the United States. Other countries have not been accused of violating this standard in the context of the NAALC.
In the Washington State apples case, petitioners argued: "In many areas U.S. labor law does not provide migrant workers on its territory the same legal protection as to its nationals, with respect to work conditions."140 For instance, according to the petition, benefits for non-migrants under workers' compensation law are better than they are for migrants. Other areas where unequal protections exist, they argued, include housing, medical insurance, temporary foreign agricultural workers, and family reunification.141
The Mexican NAO report did not take a position on the allegations, and although the agency called for ministerial consultations on the issue of the protection of migrants, the ministerial agreement contained nothing to address the structural problems that the petitioners had identified in U.S. law. Instead, the agreement rested on providing better information to workers about their rights such as they are.
The Mexican NAO sought ministerial consultations to learn about the steps being taken by the United States to ensure that the rights of Mexican migrant agricultural workers are being respected; public education initiatives related to a series of labor rights issues were included in the agreement.
Petitioners in the Yale case, regarding the memorandum of understanding between the Department of Labor and Immigration and Naturalization Service, argued that the United States government failed to enforce statutes to protect migrant workers. According to the petitioners, Department of Labor inspectors who received complaints about minimum wage and overtime violations under the Fair Labor Standards Act had to determine the legal status of immigrants. If the workers were undocumented, their cases were turned over to the INS, which could then commence proceedings to remove them from the country. Therefore, the workers were subjected to deportation as a result of having sought to have their labor rights enforced.142 The revised MOU, drafted in response to the case filing, prohibits Department of Labor inspectors from providing information to the INS when workers seek to have their rights enforced, but it permits them to do so when they come upon relevant immigration information through other means.
Four cases have focused on employment discrimination, three alleging violations by the United States and one accusing Mexico of failing to enforce its laws on the subject. The first case to raise the issue was filed in 1997 by Human Rights Watch, the International Labor Rights Fund, and Mexico's National Association of Democratic Lawyers. It documented a pattern of pregnancy-based sex discrimination in maquiladoras. Female job applicants were required to undergo pregnancy tests as a way for prospective employers to deny jobs to pregnant women, and workers who became pregnant while on the job were pressured to leave. Although the Mexican government argued throughout the NAALC process that pregnancy testing did not violate Mexican law, eventually Mexican authorities publicly stated that such testing in fact did breach domestic standards.143
The government has been done to promote the policy shift. Indeed, in public seminars that grew out of the ministerial agreements in the case, Mexican authorities produced documents on women's labor rights without addressing the issue of pregnancy-based sex discrimination. Further, Mexican officials have used NAALC-related opportunities, such as seminars, to spread misinformation. In one such example, government-produced pamphlets stated that women workers were required to inform their employers of their pregnancy status. In another, the government contended that the labor code allowed for post-hire pregnancy testing of working women when that testing was intended to protect the well-being of the woman worker or her fetus.
Nonetheless, the NAALC case has had secondary benefits. "The NAALC complaint process validated activists and women workers in their own fight to bring attention to this problem and to seek to stop it," according to LaShawn Jefferson, deputy director of the Women's Rights Division of Human Rights Watch and the researcher who documented the discrimination. In addition, the case forced the hand of the United States, Jefferson notes, comparing the attitude of officials before and after the case was filed.
Three cases have alleged racial discrimination in the United States: Solec, Washington State apples, and DeCoster Egg Farm. True to the pattern developed by the Mexican NAO, which heard the complaints, public reports on the allegations were limited to repeating the petitioners' claims and listing the NAALC principles that, if the claims were true, would have been violated. The single ministerial agreement reached covering the three cases provides for multiple public outreach sessions where issues including discrimination were to be discussed. The United States would be able to satisfy the terms of the agreement simply by holding the sessions, regardless of their content. Without understanding how the Mexican NAO viewed the problem to begin with, it is impossible to determine whether the U.S. work program addresses what the Mexican authorities deemed worthy of holding consultations.
No cases have been filed using this article.
The only case alleging violations of law related to children was closed by the U.S. NAO for lack of information from the petitioners. The case had been opened by the agency in 1998 after the U.S. labor secretary forwarded a complaint filed by the Florida Tomato Exchange. The Exchange had sought an investigation led by the secretary's office after the secretary announced that it would be carrying out an investigation into child labor on fruit and vegetable farms in the United States. The Exchange was interested in a Department of Labor investigation similar to the one carried out in the United States, not an NAO case that they feared would have no effect on child labor in Mexico's tomato industry.144 The U.S. NAO closed the case when the Florida Tomato Exchange did not respond to requests for further information from the U.S. NAO.
Minimum employment standards have been the subject of eight cases filed under the NAALC. These rights include minimum wages and overtime pay for wage earners, including those not covered by collective bargaining agreements.
The first case to raise these concerns was lodged with the U.S. NAO in 1994. Petitioners accused a General Electric plant in Mexico's Tamaulipas State of failing to pay overtime, among other abuses that included firing workers who tried to organize a union. Although the U.S. NAO's case report notes that this accusation was made, it fails to address it in any way in its findings.145 The U.S. NAO did not recommend ministerial consultations in the case. A second case alleging violations of this NAALC principle by Mexico was withdrawn by the petitioners in protest over the way the U.S. NAO handled an earlier case involving General Electric and Honeywell; the withdrawn case related to a General Electric subsidiary.
The U.S. NAO again addressed this issue several years later, when it considered violations of NAALC minimum employment standards in the TAESA case. Petitioners argued that the airline had forced flight attendants to work in excess of maximum flying time limits, failed to pay overtime and Sunday and holiday premiums, and neglected to pay payroll taxes needed for workers to receive benefits from the government.146 Even though the U.S. NAO determined that the petitioners submitted "credible evidence of disturbing neglect by the company" related to overtime, the Mexican NAO did not provide its U.S. counterpart with information that would allow a conclusion to be drawn regarding the government's handling of the issue.147 The U.S. NAO did not, therefore, reach a conclusion.
Both the Sony and TAESA cases highlight one of the weaknesses of the NAALC: the NAOs can arbitrarily ignore issues brought to their attention. In the Sony case, the U.S. NAO simply neglected to comment on this aspect of the petition. In the TAESA case, Mexico's failure to respond to the U.S. NAO caused the U.S. agency's inability to come to a conclusion on the subject.
In the TAESA case, the U.S. NAO recommended that the U.S. secretary of labor engage in ministerial consultations, but did not specify what issues should be included. At this writing, no agreement had been reached. However, the U.S. NAO noted that it continued to seek information on the minimum employment standards issues raised in the case.148
Two cases have been lodged in Mexico that allege violation of this NAALC principle in the United States-the Solec and Washington apples cases. In the Solec case, petitioners argued that U.S. authorities knew about violations of law related to salary and overtime but did nothing about it.149 Without reaching a finding on the allegation, the Mexican NAO requested ministerial consultations on the issue. As with other aspects of the Solec case, however, only a government-to-government exchange of information on the issue will come from the ministerial agreement.
In the apples case, petitioners argued that only half of all migrant workers are even covered by minimum wage standards, and that workers often receive below-poverty wages in the sector. The Mexican NAO called for ministerial consultations on the issue. The ministerial agreement included planned outreach sessions at which these issues were to be discussed with migrant workers as well as a public forum for workers, unions, employers, and government officials.
A final case dealing with this issue was submitted simultaneously in Mexico and Canada, dealing with the MOU between the U.S. Department of Labor and the INS. The petitioners argued that the MOU frightened entire communities into failing to inform authorities about violations of minimum labor standards, including minimum wage and overtime.150
As stated above, after the petition was filed, the U.S. government agencies involved drew up a new MOU in which the Department of Labor pledged not to share with the INS information about the immigration status of people who file complaints for unpaid minimum wages or overtime. Information on immigration status obtained by the Department of Labor through its own inspections, however, can be given to the INS.151
Nine cases have been filed alleging violations of this labor principle, six against Mexico and three against the United States. The importance of these cases rests with the fact that violations of this principle could conceivably lead to sanctions under the NAALC.
Even though serious evidence of non-enforcement of laws related to the prevention of occupational injuries and illnesses has come up in NAALC cases, no case has gone beyond ministerial consultations. The U.S. government has failed to insist that the problems it has identified be resolved. As described below, the U.S. NAO appears to have gone out of its way to avoid concluding that the Mexican government failed to effectively enforce laws on this issue. In one case-related to Han Young-the agency went so far as to conclude that the enforcement was not effective but then determine that the Mexican government had in fact complied with the NAALC.
Petitioners presented the Mexican NAO with strong evidence of non-enforcement in the United States, but the agency failed to do more than simply repeat the allegations made. The ministerial agreements arising from non-enforcement of this labor principle in Mexico and the United States have failed to include programs to resolve the problems identified or complained of by petitioners.
The Canadian NAO has documented serious concerns about the enforcement of health and safety laws in Mexico, based on its review of the Echlin case. It has issued detailed recommendations for ministerial consultations on the case, demonstrating strong actions on every facet of the NAO's work undertaken to date on the issue. The consultations have yet to conclude.
Complaints against the United States
Ministerial consultations led to an agreement covering all three cases in May 2000, but its strongest content consisted of holding public forums in Maine and Washington State on the host of issues raised in the petition. Public outreach sessions are certainly useful as a means to help workers obtain the information they need about their rights, which itself is a first step toward insisting that those rights are enforced. However, the problem identified by petitioners in the Washington State apples case, related to bad law and poor implementation of existing law-issues that went completely unaddressed by the agreement. Similarly, the Solec case raised concerns about the effectiveness of the agency responsible for enforcing the law; whether or not the Mexican NAO agreed with the petitioners' allegations, the issue should have been reviewed in detail.
The ministerial agreement contained no content related to poor enforcement of existing health and safety standards. Despite the centrality of labor law enforcement within the NAALC, the U.S. and Mexican governments signed a ministerial agreement that suggested that better information for victims would resolve the problem. As noted earlier in this report, petitioners described in detail OSHA's organizational failings. The problem was not that victims did not know their rights, but that OSHA's administrative, budgetary, and legal limitations made the effective enforcement of those rights difficult. Under such circumstances, the circulation to victims of better information constituted a woefully inadequate response.
Although the ministerial agreement called for public outreach on health and safety through measures such as holding meetings at which such issues could be discussed with workers and information about applicable law disseminated, the agreement only referred to such activities in the context of migrant workers. While clearly a relevant response to part of the problem in the Washington State apples and DeCoster Egg Farm cases, it left the workers of Solec in the dark.
Complaints against Mexico
In the Han Young case, the U.S. NAO found consistent and credible evidence that the workplace was "polluted with toxic airborne contaminants, strewn with electrical cables running through puddles of water, operating with poorly maintained and unsafe machinery, and with numerous other violations and omissions of minimum safety and health standards."154 The report went on to note that multiple factory inspections had taken place and fines levied, but there was no evidence that the fines were ever collected. The report concluded that "serious hazards continued unabated at the plant."155 It ended with strong questions about the "process for conducting inspections and assessing, increasing and collecting financial penalties."156 Nonetheless, the ministerial agreement contained no content designed to address, much less remedy, the problem.
In the Echlin case, the U.S. NAO described serious health and safety problems, and then issued a finding that the government had not violated its health and safety law:
The NAO concluded that the Echlin inspections were up to Mexican legal standards but that their efficacy was in doubt. The U.S. NAO ignored the requirement that laws be effectively enforced, accepting instead that the laws be nominally applied.
The ministerial agreement that covered the two cases, reached in May 2000 (see Appendix I) was limited to an exchange of information on safety and health techniques and policies to promote compliance with safety and health laws and regulations. It also included the development of a program to disseminate information on procedures and general information on the Internet.
The Canadian report on the Echlin case also found reason for concern regarding the effective enforcement of laws related to health and safety in Mexico. "Regarding hazardous substances," the Canadian NAO found, "the information received by the NAO suggests that Mexico may not have met its obligations under Article 3(1)(b) of the NAALC to ensure that: chemicals safety data sheets are readily available to workers; hazardous substances are labeled in Spanish; and workers exposed to hazardous substances are provided with adequate personal protective equipment."158
Although the wording used by the Canadian NAO did not directly accuse Mexico of violating the NAALC, the specificity of the agency's recommendation for ministerial consultations went a long way toward enabling a ministerial agreement designed to remedy the problems that gave rise to the agency's concerns in the case. Unlike the recommendations made by the U.S. and Mexican NAOs in the cases they have handled, the Canadian agency made it clear that it wanted to be convinced that the Mexican government effectively enforced its laws. The Canadian NAO included among the issues it sought to address through ministerial consultations: how the requirement to label in Spanish hazardous substances such as asbestos and chemicals is effectively enforced, particularly on imported materials; how labor authorities enforce the requirement that employers disseminate information to workers; and the type of inspections carried out in plants using hazardous substances as well as the efficacy of inspections when advance notice is given.159
At this writing, the Canadian and Mexican governments had yet to reach agreement on a plan of action based on the consultations in progress in the case. As far as the case has gone, the Canadian NAO has taken strong steps: case initiation, information-gathering, reporting, and issuance of recommendations. The Canadian NAO's work on the case to date leaves open the possibility that a ministerial agreement will lead to assurances of effective enforcement of health and safety laws, or that the failure of the Mexican government to do so will lead to the formation of an Evaluation Committee of Experts.
The NAALC requires that signatories ensure access to labor tribunals and that their laws provide for enforcement procedures. Effective enforcement of labor laws cannot take place if victims suffer from limited access to tribunals, because they will be excluded from the mechanisms designed to remedy non-enforcement. This article of the NAALC has been invoked twice against the United States and twice against Mexico.
Petitioners in the DeCoster Egg Farm case against the United States made a general allegation that workers on this farm in Maine did not have access to tribunals in which they could enforce their rights. In response, the Mexican NAO requested detailed information from its U.S. counterpart on access to tribunals. A response from the U.S. NAO provided substantial information on the relevant legal structures, but the Mexican NAO did not ask specifics about the DeCoster Egg Farm, and the U.S. NAO did not volunteer any. The final Mexican NAO report on the case was devoid of findings, interpretation, or analysis. While it is true that the petition itself did not make specific allegations detailing the ways in which article 4 had been violated, the Mexican NAO provided no indication of why it failed to address the issue in its final report, or why the ministerial consultations contained no component related to access to tribunals.
Another case that focused on this article of the NAALC was filed in May 1997, accusing the Mexican government of failing to ensure that certain victims of sex discrimination had access to labor tribunals. The case provided information on pre-hire forced pregnancy testing and post-hire pregnancy-based sex discrimination in maquiladoras as a way to screen out pregnant women and thereby avoid paying maternity benefits.160 "With respect to discrimination in hiring, there is no effective or impartial domestic protection because established tribunals in practice are open only to actual employees, not to applicants," the petitioners argued.161 During the U.S. NAO's information-gathering process, the Mexican NAO confirmed that victims of pre-hire employment discrimination have no access to labor tribunals to remedy the abuse.162
With respect to post-hire pregnancy-based sex discrimination, the U.S. NAO agreed that it took place and that it violated Mexican law, but noted theoretically that victims of this type of problem have access to labor tribunals for remedies. The U.S. NAO failed to make recommendations related to the inefficacy of remedies available to victims of post-hire discrimination.163
The ministerial agreement on the case, signed in October 1998, provided for holding conferences and outreach sessions on the rights and protections afforded women workers on both sides of the border. The access issue was never resolved, even though the Mexican government confirmed the problem.
In the Sony case, the U.S. NAO came upon a possible article 4 problem but failed to make a finding on the issue. Related to the lack of remedies when unions violate their own governing instruments, the NAO said, "This raises questions regarding availability of private action and procedural guarantees addressed in Articles 4 and 5 of the NAALC. The U.S. NAO proposes to add this issue to the trinational exchange program agenda and to focus attention on the questions presented by the workers' allegations [on freedom of association]."164
The Canadian NAO indicated in its report on the Echlin case that workers had been unfairly excluded from labor tribunals, in violation of article 4.165 At this writing, the Canadian government was still negotiating the content of a ministerial agreement with Mexico.
The fairness of labor tribunals goes to the heart of the NAALC's requirement that the parties enforce their own labor law. As the Canadian NAO has stated, "The effective enforcement of labour legislation rests to a large extent on fair and equitable labour boards and processes."166 This makes sense, because without fair tribunals, even the best labor law can be applied in a way that undercuts labor rights.
Twelve NAALC cases have questioned the fairness of tribunals, eight accusing the Mexican government of failing to meet this standard, three accusing the United States, and one accusing Canada. Petitioners have alleged that Mexico's labor tribunal system suffers from a conflict of interest stemming from the way its members are chosen, and that individual tribunals have acted improperly in specific cases. The Mexican NAO has heard cases arguing that the U.S. labor adjudication system fails the NAALC article 5 requirement that it not be unnecessarily complicated or establish undue delays, and that it works in collusion with management.
Even when the U.S. NAO has confirmed the serious allegations made against the Mexican system, it has failed to take any measure to encourage, much less ensure, that its labor tribunals are fair. For its part, Mexico's reports have simply failed to address the allegations against the United States. At this writing, Canada and Mexico are engaged in consultations that include article 5 issues.
Complaints against Mexico
The Fishing Ministry union case focused on labor tribunals that exist exclusively for employees of the federal government. Petitioners showed that the federation of unions of government employees supported the PRI and vigorously opposed the Democratic Union of SEMARNAP, which espoused independence from the PRI. Yet the federation named the workers' representatives to the tribunal hearing the case. The U.S. NAO concluded that the make-up of the tribunal could lead to the appearance of conflict of interest in cases in which the federation that names the labor representative was at odds with a union outside the federation.168 This situation was, in fact, what the Democratic Union faced.
In both cases, the conclusion of potential conflict of interest should have raised deep concern about the Mexican government's fulfillment of its obligation under article 5 of the NAALC. In both cases, however, the U.S. NAO applied unduly narrow criteria for determining that there was no reason for concern. In the Fishing Ministry union case, for instance, it argued that despite the potential for conflict of interest stemming from the structure of the tribunals, the case itself did not show that a conflict of interest had indeed existed.169 In so arguing, the U.S. NAO committed two serious errors. First, if the very structure of the tribunals allows for a conflict of interest, then the NAALC fairness criteria cannot be met. In this case, though, the U.S. NAO wrongly applied a case-specific standard where an overall concern for fairness was appropriate.
The second problem related to the U.S. NAO's argument that no conflict of interest existed in the particular case under review. To make this argument, the agency said that no conflict of interest existed because the union was able to win when it appealed outside the labor tribunal system. This argument was irrelevant, since conflict of interest in the labor tribunals can exist whether or not an appeal is available, and winning on appeal, once the case is outside the labor tribunal system and before the regular courts, sheds no light whatsoever on whether bias existed at the labor tribunal level.
The U.S. NAO has also found problems with individual labor tribunals in Mexico, but failed to insist on remedial action. In a broad finding in the Han Young case, for example, the U.S. NAO determined, "The placement, by the Tijuana CAB, of obstacles to the ability of workers to exercise their right to freedom of association, through the application of inconsistent and imprecise criteria and standards for union registration and for determining union representation, is not consistent with Mexico's obligation to effectively enforce its labor laws on freedom of association in accordance with Article 3 of the NAALC."170 The U.S. NAO also found that the CAB's actions "appeared inconsistent" with Mexico's obligations to ensure impartial tribunals.171
In the Echlin case, the U.S. NAO also found problems with the tribunals: "The conduct of the proceedings by the Federal CAB No. 15 was not always consistent with the Federal Labor Law and the obligation of the Parties to the NAALC to ensure impartial tribunals for the resolution of disputes."172
Although the ministerial agreement reached on these two cases addressed the issue of labor tribunals, it did not include components to remedy the problems identified. Instead, it called for a trinational public seminar to discuss legal, structural, and practical issues related to labor tribunals in the signatory countries.
In the Sony case, the U.S. NAO found "some weaknesses and inconsistencies in the enforcement mechanisms of Mexican labor law with regard to union registration. These form the basis for the arguments made by many in the U.S. (including the submitters in the Sony case) that Mexico's labor tribunals (CABs) are not fair, equitable, impartial and independent when addressing questions of union registration."173 Despite this finding, the ministerial agreement contained no measures to effectively address the problem. Rather, the Mexican government organized three conferences on union registration and produced a study on the topic by Mexican experts.
The U.S. NAO provided rare insight into its decision-making process on this issue when it rejected a request by the Sony case petitioners to reopen the case. The agency noted that "the stated objectives of the ministerial consultations were accomplished, i.e. a full examination of the matter."174 That is, by choosing to define the goals of ministerial consultations so narrowly-as designed to examine, not remedy problems-the U.S. NAO permitted itself to claim success even though a serious problem came to light regarding article 5 but was not remedied.
Canada's report on the Echlin case found it "uncertain" that the structure of Mexico's labor tribunals are such that they meet article 5's requirement that tribunals be "impartial and independent and do not have any substantial interest in the outcome of the matter."175 The report went on to request ministerial consultations on specific issues on this topic, including how article 5 obligations are met given the structure of the tribunals. The consultations continue at this writing.
Complaints against the United States
No cases have been submitted questioning the signatories' compliance with this article.
The United States and Mexico have both been accused once of failing to live up to this provision of the NAALC. In the DeCoster Egg Farm case, the United States responded through ministerial consultations by preparing a plan to advertise labor law related to migrants, including by holding public outreach sessions and producing a trilingual guide to the labor rights of migrants, which it promised to make available to workers, individuals, businesses, and organizations.
The case alleging violations of this obligation by Mexico-the Auto Trim case-was filed in June 2000. At this writing the U.S. NAO had yet to publish its report on the case.
87 See, for example, U.S. NAO, "Public Report of Review of NAO Submission No. 9702-Part II: Safety and Health Addendum," August 11, 1998, p. 43, and U.S. NAO, "Public Report of Review of NAO Submission No. 9701," p. 46.
88 The cases not accepted for review were the Canadian Post Case (U.S. NAO Case No. 9804) and the EFCO case (Canadian NAO Case No. 99-1). The Auto Trim case (U.S. NAO Case No. 0001) was filed in June 2000; at this writing, the U.S. NAO had yet to publish its report on the case.
89 Canadian NAO, "Review of Public Communication CAN 98-1 (Part I)," December 11, 1998, p. 2. U.S. NAO, "Public Report of Review of NAO Submission No. 9703," July 31, 1998 (revised August 21, 1998), p. 12.
90 Regarding the two cases that were rejected, the U.S. NAO did not accept Case No. 9804, related to a Canadian law that provides fewer labor rights guarantees for rural mail carriers than it does for urban carriers. The Canadian government rejected Canadian NAO Case No. 99-1, regarding what the petitioners deemed unduly restrictive provisions of U.S. labor law related to the National Labor Relations Act's prohibition of employer domination of labor organizations.
91 In U.S. domestic labor legislation, for instance, Section 8(a)(1) of the National Labor Relations Act (NLRA) establishes a general duty for employers to refrain from "interference, restraint and coercion." Internationally, Article 2 of the International Covenant on Civil and Political Rights (ICCPR) holds that the Parties undertake "to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant." The American Convention on Human Rights (ACHR), at Article 1, establishes a similar general obligation.
92 With respect to the NLRA, the National Labor Relations Board and appeals courts have done so. The ICCPR's Article 2 has been interpreted by the United Nations Human Rights Committee. ACHR Article 1 has been reviewed and interpreted by the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
93 STIMAHCS, et al, "Violations of NAALC Labor Principles and Obligations in the Washington State Apple Industry," May 27, 1997, pp. 16-17. Several years after the case was filed, the Clinton Administration issued ergonomics standards; at this writing, the House of Representatives and Senate had passed, and President George W. Bush pledged to sign legislation scuttling the standards.
94 Ibid., pp. 23-26.
95 Ibid., p. 11.
96 Canadian NAO, "Review of Public Communication CAN 98-1 (Part I)," p. 37.
97 Letter from Irasema Garza, secretary, U.S. NAO, to Larry Fedechko, president, Organization of Rural Route Mail Carriers, February 1, 1999.
98 NAALC, Article 16(3).
99 The italicized descriptions of the NAALC labor principles in this chapter are drawn from the NAALC's own definitions. NAALC, Annex 1.
100 The ILO maintains a freedom of association committee, which is the authoritative source for interpreting ILO Convention 87 on Freedom of Association and the Right to Organize, and has published tomes on the committee's findings. See, for example, International Labor Office, Freedom of Association: Digest of Decisions and Principles of the Freedom of Association Committee of the Governing Body of the ILO (Geneva: International Labor Office, 1996).
101 U.S. NAO, "Public Report of Review, NAO Submission No. 940003," April 11, 1995, p. 32.
102 U.S. NAO, "Report on Ministerial Consultations on NAO Submission No. 940003," June 7, 1996, p. 14.
103 Ibid., p 7.
104 U.S. NAO, "Public Report of Review, NAO Submission 9601," January 27, 1997, p. 13.
105 After determining that the conference would offer no opportunity to resolve the issues described in the submission, Human Rights Watch, a petitioner in the case, did not attend the conference.
106 Office of the U.S. Trade Representative, "Study on the Operation and Effects," p. 95.
107 Office of the U.S. Trade Representative, "NAFTA Works for America," p. 19.
109 As important as this advance was, however, it was limited by the fact that Mexican appeals court decisions are valid only for the case in which the decision was made; it did not create binding precedent for other unions. It was further limited by the fact that Mexican labor law does not define the rights of second unions in government ministries, since such unions had always been prohibited. This gap in the law is what allowed SEMARNAP to refuse to honor the registration obtained by the union.
110 Human Rights Watch telephone interview with Roberto Tooms, former secretary general of SIDT-SEMARNAP, July 21, 2000.
111 U.S. NAO, "Public Report of Review of NAO Submission No. 9702," April 28, 1998, available on the Internet at http://www2.dol.gov/dol/ilab/public/media/reports/nao/pubrep9702.htm#vi.
112 U.S. NAO, "Public Report of Review of NAO Submission No. 9703," pp. 69-70.
113 Human Rights Watch telephone interview with José Angel Peñaflor, January 3, 2001.
114 Mexican NAO, "_eport on Review of Public Submission 9501/NAOMEX."
115 U.S. NAO, "Agreement Reached by the U.S. and Mexico. Ministerial Consultations--Submission 9501 (Sprint Case) Agreements on Implementation," December 15, 1995. The agreement was not formally signed until February 13, 1996.
116 Morton Bahr, comments reproduced in Commission for Labor Cooperation, "Review of the North American Agreement on Labor Cooperation."
117 STIMAHCS, et al., "Violations of the NALCA Labor Principles and Obligations in the Washington State Apple Industry," pp. 10-11.
118 Ibid., pp. 11-12.
119 U.S. NAO, "Public Report of Review of NAO Submission No. 9901," July 7, 2000, p. 72.
120 International Labor Rights Fund, et al., "The Case of Han Young," p. 7.
121 U.S. NAO, "Public Report of Review of NAO Submission No. 9702."
122 Human Rights Watch telephone interview with José Angel Peñaflor.
124 For further information on this aspect of Mexican labor law, see Commission for Labor Cooperation, Labor Relations Law in North America (Washington, D.C.: Commission for Labor Cooperation, 2000), pp. 98-100.
125 U.S. NAO, "Public Report of Review of NAO Submission No. 9901," p. 72.
126 Oil, Chemical and Atomic Workers International Union, Local 1-675, et al., "Comunicación Pública a la Oficina Administrativa Nacional," April 9, 1998, p. 10.
127 STIMAHCS, et al., "Violations of NAALC Labor Principles and Obligations in the Washington State Apple Industry," p. 6.
128 Organization of Rural Route Mail Couriers, et al., "Public Communication on Labor Law Matter Arising in Canada," December 2, 1998, pp. 5-6.
129 Labor Policy Association and EFCO Corporation, "Public Communication/Submission on Labor Law Matters Arising in the United States Before the Canadian National Administrative Office Under the North American Agreement on Labor Cooperation," April 14, 1999. In June 1999 the Canadian NAO declined to review the case.
130 Article 3 of the NAALC requires the signatories to promote compliance with their labor law by, among other things, "encouraging the establishment of worker-management committees to address labor regulation in the workplace." The U.S. National Labor Relations Act prohibits employer domination of labor organizations, and the National Labor Relations Board had ruled that management-worker groups at EFCO were sponsored and dominated by management, not workers. See Lance Compa, "NAFTA's Social Dimension," p. 30.
131 Letter from Daniel Yager, Senior Vice-President and General Counsel of LPA, to May Morpaw, Director of the Office of Inter-American Labour Cooperation of Canada, June 15, 1999.
132 NAALC, Preamble.
133 Letter from Irasema Garza, secretary of the NAO, to Patricia Friend, International President of the Association of Flight Attendants, October 19, 1998.
134 Letter from Patricia Friend to Irasema Garza, November 9, 1998.
135 Letter from Irasema Garza to Patricia Friend, December 21, 1998.
137 U.S. NAO, "Status of Submissions," May 19, 2000. Available on the Internet at www2.dol.gov/dol/ilabpublic/ programs/nao/status.htm.
138 STIMAHCS, et al., "Violations of NAALC Labor Principles and Obligations in the Washington State Apple Industry," p. 22.
139 Mexican NAO, "Review Reports/Public Notice Mex 9802," (official translation), August 1999, p. 13.
140 STIMAHCS, et al., "Violations of NAALC Labor Principles and Obligations in the Washington State Apple Industry," p. 23.
141 Ibid., pp. 23-26.
142 This case was filed in 1998 in both Mexico (Mexican NAO Case No. 9804) and Canada (Canadian NAO Case No. 98-2).
143 Letter from Alexis Herman, secretary of labor, to José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch, May 5, 1999. Letter from Irasema Garza, secretary of the U.S. NAO, to José Miguel Vivanco, August 30, 1999. Describing statements made at a conference in Mexico sponsored as part of the ministerial agreement on the case, Herman wrote, "In particular, the Mexican officials explained the view that employment discrimination, both pre- and post-hire, on the basis of gender and pregnancy are illegal under Mexican law and would not be tolerated."
144 Human Rights Watch telephone interview with John Himmelberg.
145 U.S. NAO, "Public Report of Review, NAO Submission No. 940001 and NAO Submission No. 940002," October 12, 1994, p. 6.
146 Association of Flight Attendants, "Public Communication to the United States National Administrative Office/Executive Air Transport, Inc. (TAESA)," November 10, 1999, pp. 11-12.
147 U.S. NAO, "Public Report of Review of NAO Submission No. 9901," pp. 74-75.
148 Ibid., p. 75.
149 Mexican NAO, "Informe de Revisión, Comunicación Pública Mex 9801," August 1999. Available at www2.dol.gov/dol/ilab/public/media/reports/nao/mex9801spanish.htm.
150 Yale Law School, et al., "Petición sobre Asuntos Relativos a Legislación Laboral Surgidos en los Estados Unidos," September 17, 1998, pp. 29-30.
151 Lance Compa, "NAFTA's Social Dimension," p. 30.
152 STIMAHCS, et al., "Violations of NAALC Labor Principles and Obligations in the Washington State Apple Industry."
153 Oil, Chemical and Atomic Workers International Union, "Comunicación Pública," p. 5.
154 U.S. NAO, "Public Report of Review of NAO Submission No. 9702-Part II," p. 41.
155 Ibid., p. 42.
157 U.S. NAO, "Public Report of Review of NAO Submission No. 9703," p. 71.
158 Canadian NAO, "Review of Public Communication CAN 98-1 (Part II)," March 12, 1999, p. iii.
159 Ibid., p. v.
160 This case was based on research conducted by the Women's Rights Division of Human Rights Watch. For further information, see Human Rights Watch, "No Guarantees: Sex Discrimination in Mexico's Maquiladora Sector," Vol. 8, No. 6(B), August 1996, and "A Job or Your Rights: Continued Sex Discrimination in Mexico's Maquiladora Sector," Vol. 10, No. 1(B), December 1998.
161 Human Rights Watch, et al, "Submission Concerning Pregnancy-Based Sex Discrimination in Mexico's Maquiladora Sector," May 15, 1997, p. 37.
162 U.S. NAO, "Public Report of Review of NAO Submission No. 9701," p. 39.
163 Human Rights Watch, "A Job or Your Rights," p. 47.
164 U.S. NAO, "Public Report of Review, NAO Submission No. 940003," p. 29.
165 Canadian NAO, "Review of Public Communication CAN 98-1 (Part I)," p. 37.
166 Ibid., p. 35.
167 U.S. NAO, "Public Report of Review of NAO Submission No. 9901," p. 41.
168 U.S. NAO, "Public Report of Review, NAO Submission No. 9601," January 27, 1997, p. 32. The U.S. NAO took a narrow view of the possibility of conflict of interest, failing to recognize the possibility for such conflict when one union supports the government and the other is independent of it. Mexican law prescribes that only one federation of federal government employees can exist, so for any union to obtain the benefits that flow from organization, such as health care, it would have to belong to the federation.
169 U.S. NAO, "Public Report of Review of NAO Submission No. 9901," pp. 41 and 73.
170 U.S. NAO, "Public Report of Review of NAO Submission No. 9702."
171 Ibid. "The actions of the Tijuana CAB, including the delay in informing the parties of its decision in the case, the rationale of its decision not to certify the first representation election, and irregularities in the conduct of the first representation election, appear inconsistent with Mexico's obligations under Articles 5(1), 5(2)(b) and 5(4) of the NAALC."
172 U.S. NAO, "Public Report of Review of NAO Submission No. 9703."
173 U.S. NAO, "Report on Ministerial Consultations on NAO Submission No. 940003," p. 14.
175 Canadian NAO, "Review of Public Communication CAN 98-1 (Part I)," p. 36.
176 Oil, Chemical and Atomic Workers International Union, "Comunicación Pública," p. 10.