Forcing Withdrawal from Unions "whatever the means employed"

A recurrent theme in the history of union organization at Phillips-Van Heusen's Camosa I and Camosa II plants, since union organization began there in 1989 under the previous PVH senior management, has been the claim of undue pressure put upon employees to reject trade union membership, to relinquish such membership, or to resign from the company because of union involvement. Some union sympathizers also were reported to have been dismissed outright when union organization began. Article 10 of the Labor Code stipulates that "It is prohibited to take any form of reprisal against workers with the end of partially or totally impeding their exercise of the rightsgranted in the Constitution, this Code, its regulations or other labor or social welfare legislation, or because they had exercised or attempted to exercise them."55 Similarly, article 62 of the code prohibits employers, in its paragraph c), from "Forcing or attempting to force workers, whatever the means employed, to withdraw from unions or legal groups to which they belong or to join one or the other."

There were striking positive practices at the combined PVH plant. First, unlike two other maquilas we visited, the workers at PVH had free access in and out of the facility during the fifteen minute morning break and the thirty minute lunchtime when groups of workers congregated outside the plant. Union organizers-non-company employees-had uncontested access to this public space and engage in lively discussion with Phillips-Van Heusen employees. There were both unarmed uniformed private security and personnel of the PMA (the mobile military police) armed with automatic weapons at the doors of the plant, but aside from allegations of intimidation by additional private security personnel retained briefly in 1996 to protect two senior managers, who in turn had allegedly been threatened by union sympathizers, there were no reports that regular security personnel harassed union organizers or those workers talking with them.

A number of union workers had posted signs above their machines within the PVH plants. These signs, calling for collective bargaining and justice, appeared in clusters in several departments. In addition, there was also brief, pre-planned "chanting" - at the appointed hour, workers would briefly blow whistles, chant and bang on equipment to demand a collective bargaining agreement. Human Rights Watch representatives were in the plant during two of these demonstrations. No workers complained that management had disciplined them for their participation in these actions. We believe that this tolerance of workers' rights to free expression and free association is extremely rare, if not unique, in Guatemala's maquila sector and we credit this commitment by PVH. Indeed, the openness with which many workers revealed their union sympathies suggests a limit to their fears of intimidation.

However, notwithstanding the guarantees in Guatemalan and international law, Human Rights Watch found considerable evidence that union members at the two PVH plants had faced discriminatory treatment that included pressures to withdraw from the union or resign from the company. A pattern of discriminatory treatment of unionized employees was combined with implicit and explicit warnings by supervisors and, in the Camosa II plant, senior personnel officials, that other workers contemplating affiliation would be vulnerable to similar treatment. This pattern of discrimination and intimidation is outlined below.

Protection from Arbitrary Dismissals and Discriminatory Actions

Overall statistics on staff turnover at the PVH plants suggests a remarkable stability in the work force. In 1994, turnover was estimated at just 5 percent yearly at Camosa I and just 2 percent at Camosa II. The departure of unionized staff, in contrast, was at a rate of about 34 percent between August 1995 and August 1996. The union's registered membership as of August 1995, for example, was confirmed in September 1996 to have suffered the loss of 46 members; their resignations from the two plants were confirmed by both the company and the union in its meetings with labor inspectors (see above). Most of these staff had resigned from Camisas Modernas after years of service. The pattern of resignations from the highly unionized finishing department of Camosa II is discussed below.

When questioned about an increased number of voluntary departures in September, the personnel manager told Human Rights Watch that between twelve and fifteen employees had left that month compared to the monthly average of between two and five. In discussing the increase in August and September, she indicated that "People who left don't feel comfortable because they heard too many negative comments. People left because they don't want tocope with the tension." She also said that it was difficult for the company to hire new employees because new people "saw too much tension at the plant and felt uncomfortable."

Guatemalan law provides some special mechanisms by which workers may be protected from discriminatory treatment or reprisals for involvement in trade union activities. Such measures may be invoked when union organizing committees have been founded and efforts to recruit members and to seek legal recognition are under way, or in the course of labor conflicts. While these legal protections are backed by minimal penalties for offending employers, and there is a poor record of enforcement of provisions for the reinstatement of workers dismissed in violation of these orders, they do provide some basic protection for a workforce's exercise of freedom of association.

The labor code, in article 209, stipulates that workers cannot be dismissed for participating in the formation of a union, granting them a right of job security and stability (inamovilidad) for a certain period, during which time they cannot be removed from their post or dismissed without a court order. Union leaders registered with the labor ministry, moreover, receive special protection, their job security guaranteed under these conditions from the time their election is reported to the ministry until they cease to serve as officials; union officials are issued credentials by the labor ministry identifying them as such and employers are duly notified of their status.

Mechanisms to further protect union organization include orders of emplazamiento, injunctions by which the courts may protect the work force from arbitrary dismissal (requiring a court order to dismiss staff for cause), and orders halting involuntary transfers to new assignments. Such measures have been in force at the PVH plants since the legal recognition of the union in 1992.

Administrative and court orders to protect job stability forbid both arbitrary dismissals and certain changes in the conditions of employment, such as the involuntary transfer from one production operation to another. However, the manipulation of the work available to a particular production line, a certain work force, or a particular individual, when wages are paid on piece-rate basis, may vitiate these protections by drastically reducing an individual worker's weekly income. Such changes in income were found to be particularly prevalent among union members at the PVH plants under study.56

In a disturbing pattern, many workers interviewed by Human Rights Watch described having their incomes reduced to one quarter or half of the earnings they had regularly received at the same jobs in the years prior to joining the union. In such cases, workers whose employment was formally protected in law, some of them with up to seven years' tenure with PVH and records of numerous quality and production awards from the company, said they were being forced to leave to seek employment elsewhere. In some cases described by workers in interviews, supervisors appear to have subjected union members to what might be described as a workbench "lockout": although they remained formally employed, work orders evaporated and their production, and income, plummeted. Union memberscited the practice of being assigned to poorly functioning machines that lowered their ability to produce; or to broken machines which seemed to be a very low priority for repair. Evidence collated by Human Rights Watch on personnel movement, in turn, confirmed that a very high proportion of union members had, indeed, left the plant in the course of 1996- numbers greatly disproportionate to the company's normal staff turnover.

Dismissals for trade union activism-and forced resignations-are violations of Guatemalan labor law as well as international labor conventions to which Guatemala is party (and which are considered integral parts of Guatemalan labor law). Protection against acts of anti-union discrimination, moreover, extends beyond the extreme cases of outright dismissal. As noted, articles 10 and 62, respectively, of the Guatemalan labor code prohibit either reprisals for union activities or pressures, "whatever the means employed," intended to force workers to withdraw from unions. As noted above, the ILO's Convention 98 (Right to Organize and Collective Bargaining Convention, 1949), which Guatemala has ratified and which is extensively excerpted in the labor ministry's annotated edition of the Labor Code, spells out in article 1, paragraph 2, that protection against anti-union discrimination:

shall apply more particularly in respect of acts calculated to -

(a) make the employment of a worker subject to the condition that he shall not join a union or shall relinquish trade union membership;

(b) cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities outside working hours or, with the consent of the employer, within working hours.

The jurisprudence of the ILO's Committee of Experts, also cited above, has established that the acts of discrimination prohibited extend considerably beyond hiring and firing: transfers, downgrading, disciplinary measures and restrictions on pay are among the examples cited in the rulings of the two committees.

Similarly, the ILO's Committee on Freedom of Association has commented on the need for increased safeguards to prevent dismissals and other discriminatory acts as a consequence of union members enormous vulnerability to such acts:

Since inadequate independent safeguards against acts of anti-union discrimination, in particular against dismissals, may lead to the actual disappearance of trade unions composed only of workers in an undertaking, additional measures should be taken to ensure fuller protection for leaders of all organizations, and delegates and members of trade unions, against any discriminatory acts.57

The reference to discriminatory treatment-even short of dismissals-leading to the actual disappearance of a union is particularly relevant in the case at hand: on no less than three occasions since a union organizing committee was first established at the Camosa I plant, the STECAMOSA union has lost its leadership (by dismissals and resignations of leaders in 1989 and 1992, and subsequently by resignations). Its membership, in turn, was dispersed through dismissals, resignations and by the relinquishing of union affiliation in circumstances in which the severe reduction of earnings appears to have been a critical factor. The latest efforts to obtain the recognition of the company for purposes of negotiation are only the latest in a series in which discriminatory measures appear to have been implemented in direct response and in proportion to the union's success in mobilizing the work force.58

The question posed is whether the measures alleged in the cases of particular union members and groups of members (as, for example, the finishing department of Camosa II), can, first, be confirmed to have occurred, and second, determined to have been a discriminatory response to trade union activism. The jurisprudence of theCommittee on Freedom of Expression in interpreting Convention 98 provides substantive standards by which to measure allegations of discriminatory treatment, but gives little guidance on the evidentiary requirements by which these standards can be applied. The committee's consideration of reprisals for strike action, however, may provide a useful analogue. As one leading authority notes,

the Committee has found it difficult to accept as a coincidence unrelated to trade union activity that heads of department should have decided, immediately after a strike, to convene disciplinary boards which, on the basis of service records, ordered the dismissal not only of a number of strikers but also of the members of their union committee.

The same logic might similarly be brought to bear upon the analysis of the resignations of significant numbers of union members from the plant at precisely the time of a major union initiative to negotiate a collective agreement. Similarly, a management decision at such a time to drastically reduce the work force of a department identified as a union stronghold requires particular examination. In questioning the disproportionate departure of union members from employment, it may also be necessary to consider whether economic grounds have been provided for such measures, and whether such grounds can be deemed to have been the pretext for discriminatory measures.

The Human Rights Watch inquiry found that the court injunctions and administrative protection orders designed to stabilize conditions of employment at times of heightened union activity can readily be circumvented by the system of piece-rate payment. PVH had been under an injunction of this kind (an emplazamiento) since the legal recognition of the union in 1992. This system can yield drastic reductions in income as a result of production factors and management decisions that are neither communicated to nor subject to the control of the workforce. The reduction of earning power, in turn, directly related to the resignation of union members during 1996.

Human Rights Watch concludes, on the basis of its review of individual cases and the pattern of resignations, that representatives of the company at the factory level encouraged resignations through such a pattern of discriminatory treatment of union members. As such, forced resignations appear comparable to unlawful dismissals.

Equal Protection?

A court injunction limiting dismissals may be intended to preserve conditions of employment pending resolution of a labor dispute. In practice, however, a principal condition of employment, the workers' earnings beyond the absolute minimum (Q17.60/day; about US $2.50) is left to the discretion of the employer. Insofar as the base wage is not generally considered a living wage in Guatemala City, supplementary income earned on a piece-rate basis is the norm by which most employees bring their wages up to a reasonable level by the standards of the maquila industry. A range of conditions regularly arise, however, under which sufficiently high levels of production cannot be maintained regardless of the level of skills and commitment of individual workers. These include interruptions of normal production brought about by machine breakdowns, production delays at some other part of the line, the delay in the delivery of working materials, and other factors beyond an individual worker's control. One option available to companies to compensate for these changes in working conditions is to "protect" workers by guaranteeing their earnings at the level of their previous average income during these interruptions.

"Protection" of earnings may also be ordered by the personnel department or a particular supervisor when a worker undertakes a task outside his or her usual area of responsibility, or complies with a request from the management that legal constraints make strictly voluntary. Most significant of the latter are those situations in which a manager seeks the transfer of a worker to a new operation: such transfers, under the emplazamiento (injunction), must be voluntary. At the same time, such transfers often require an operator to develop new skills, so that an operator will have to work for some time before reaching the production level at which the base pay is surpassed and earnings rise to what is considered a living wage. Compensation for such obstacles to a worker's full earning potential may thus avoid penalizing a worker for agreeing to take on a new assignment at which production levels will,initially, be lower. Both managers and union workers described the norm for protection of income in such cases of transfer as a period of four to six weeks.

However, unlike the routine protection of income for those who agree to transfer to new work responsibilities, protection for interruptions of production are largely left to the discretion of supervisors-and to policies of the personnel department to which workers are privy only through observation of the consequences. Each worker has a daily work sheet at his or her workstation, on which supervisors mark inactive time: when, for example, the flow of materials is interrupted, or when a machine breaks down. They can indicate on this sheet that income for the time in question is protected. Protection of income can also be ordered when an employee must go to the Instituto Guatemalteco de Seguro Social (IGSS, Guatemala Social Security Institute) for medical attention; this, too, according to worker interviews, is at the discretion of supervisors (all workers continue to receive their base pay at such times).

In interviews with Human Rights Watch, many workers alleged that plant superiors discriminated against union members in determining whether to protect income. Some workers also claimed that supervisors had systematically favored non-union workers in the delivery of working materials, and in the speed with which broken machines were repaired. For example:

· A union section coordinator in a unit of the sewing department told Human Rights Watch that when she returned from medical leave she was given a machine that was barely functioning. Her wages went down to the minimum level and the supervisor would not "protect" her time. She had to constantly ask for a repair technician. Finally, a mechanic did attend to the machine but never repaired it in a way that allowed her to

attain a high rate of production and earnings.

· A union member said recent problems in her rate of production and capacity to earn were a consequence of being assigned a defective machine. While this was indicated on her time sheet ("maquina mala"), her payment was not adjusted in compensation. For three days, repairmen had ignored her, giving other machines priority. Then the operators went on their annual Christmas holiday, when she returned on January 6, the machine was still out of commission. She believes she had an operational machine at the time of this interview only because [the operator next to her] had resigned, and his machine was free. "So I sat down at his machine on the 6th." She said other workers in her unit who have observed the problems she has had have told her she should might as well quit.

Managers told Human Rights Watch that the system of repairs was geared to respond promptly to machine breakdowns, with mechanics often going immediately to do so when line supervisors light the red light bulbs spotted around the shop floor which signal breakdowns. Asked about complaints of days-long delays, they said that these were rare, and that it was a top priority to avoid them, as it meant production was held up and workers were under-utilized.

Most union member's descriptions of discriminatory practices were presented as what they saw as the preferential treatment of others:

"The fact is that the company, that is the chiefs and supervisors, always have their favorites.... When there is little work, all are stuck at the minimum, but it turns out that some are paid more.... We look at each other's pay slips and we raised this with the supervisor. He said `Yes, I give preference, to those who don't answer back.' He has his favorites, and told our co-worker that if she joined [the union] she would be treated badly."

Human Rights Watch requested basic information on rates of payment at the two PVH plants, and was given a breakdown of average wages from the pay period covering the last two weeks of November 1996. The average worker at Camosa I was said to have received a daily income equivalent to US $10.89 during this period; the averageworker at Camosa II earned $11.61 per day.59 These figures highlight the impact of discriminatory treatment on the earnings of union members.

Unionists described discriminatory treatment to Human Rights Watch in terms of the way in which supervisors and managers dealing with personnel issues interacted with workers on the personal level; treatment they attributed to their union membership ranged from shunning and outright hostility to severe economic penalties, and often a combination of the two. Where senior personnel officers were identified in interviews as having singled out particular workers for poor treatment, problems with supervisors on the shop floor were said to have been accentuated. The loss of income was the primary concern expressed; a penalty exacerbated insofar as questioning rates of payment on which their pay slip is calculated or working conditions depend in large part on each individual's relation to their supervisor and personnel officers. Workers interviewed said that supervisors' use of their authority to "protect" income in such circumstances meant that the income of workers who are "in" with the supervisor was routinely protected, but not so that of union members, who were in disfavor.

· Human Rights Watch interviewed one woman who told us she had her 100 percent production award apron and was earning Q400 or more a week ($57) before joining the union. Her earnings went down subsequently. She is now making about Q230 per week ($32), while working Saturdays and overtime during the week to raise her income; the last week before we spoke she made only Q207 ($29).

· Another woman described being cut off from help in resolving daily problems because she was in the union. "When someone is not a member, they keep them from talking to us. They frighten people. They don't call us to meetings. They marginalize us. They ignore us. They treat us like people who don't exist. They give the work to others. They find errors frivolously. The intention is to drive people to desperation."

· "Our production went way down after they changed the cloth used, from Q350 [$50 per week] to Q90 [$12 per week]. [The production manager] said there would be protection of our wages for two weeks, as it was new work. But the supervisor said `Why do you think I'll protect you if this is the same work. In personnel they already told me you are a liar.' When I went to see [name withheld] and [name withheld], it was the same. As if I didn't exist. Another time I went to personnel to ask a favor of the [name withheld], and she pretended not to see me; she began to dance, as if I wasn't there, she turned on the radio. Before they knew of my membership, they were very nice. `How is the baby?' After the agreement [was presented] they knew."

· "I want to get my compensation, for them to pay me my time at 100 percent and I'll leave. I was at Camosa I from the first day. Now I'm almost wasting my time. There is favoritism. When there are extra hours to be worked, they give preference to others. They are trying to make us desperate. If they want me to leave, they should pay me off."60

The piece-rate system provides numerous opportunities for arbitrary decisions at the supervisory level. Some examples drawn from interviews of union members follow:

· "When [name withheld] comes she doesn't say `good morning.' She greets some workers but ignores others. She has her people. When we are transferred to a new assignment we are not given a ticket to protect [our income], but yes, this is done for others." This interviewee did, however, maintain that since the union had presented its petition to negotiate, the behavior of the supervisors had improved. "Before we were frightened, in part because it was so hard to find alternative work, there was a blacklist. They offered to pay us our time [compensation based on years of service] so that we would resign."

· An operator told Human Rights Watch that [the production manager] used to greet her but is now very cold. She has been on her line for six months, but has seen the level of production drop. She is now a `floater,' filling in on different operations, so she never learns. She had three days last week without work, as they shifted work to others. She is earning only some Q150 a week (US $21). Her supervisor had questioned her about her union membership.

· "I've worked in Camosa II for five years, but was taken off my machine two years ago because they said I went to the IGSS [the Social Security hospital] too much; I needed to go every fifteen days for a period of two months, and then once a month. The supervisor said I spent too much time, although [name withheld] in personnel said he should be patient. Now I work on a machine that is one-of-a-kind, and one day there is work, the next nothing; I've just had two weeks without work. I have been earning only Q130 [$18 per week] for the past two years. Previously they had treated me with moderation, without bad words. After September, [name withheld] shouted and became hysterical."61

· "For two weeks, I was shifted to work correcting sewing errors, at the minimum wage; at that time, I was completing a bulto [a packet or bundle of work, a standard production unit], and had completed four production tickets [a stick-on label representing part of the production quota]. While doing the repair work, I wasn't sure whether to turn in the tickets on the unfinished bulto. After two weeks I noticed that my pay check went down, and when I returned to production, I explained this to the supervisor. She said `These are old tickets. This doesn't count for anything.' And she took them and tore them up, threw them into the wastebasket. She also has favorites. I've seen the pay slips of others who do the same work with no more production, and they are higher. It may be because she saw me in the street with members of the union executive."

Another instrument of discriminatory treatment reported by union members was the periodic misuse of the exacting system of quality control, by which the identification of production errors may require an operator to reexamine bundles of dozens of items. Repeated quality errors, in addition, result in formal warnings and a trip to the personnel office where workers are required to sign a formal disciplinary form which goes in their file. The workers interviewed expressed an appreciation for the need for very high quality work in the plant, and a pride in their abilities in this regard: some of them described in detail the quality awards and the "100 percent" production award aprons they had won over the years for their work. The concern expressed with the system, however, is not only with the tension of speed v.s. quality which workers face daily, but with what some workers maintain were arbitrary rejections of top quality work as a means to punish and deter union membership. A number of union members maintained that quality control was sometimes a pretext to punish those who had joined the union and a tool to discourage other workers who had not.

In July 1996, according to workers in the unit that sews cuffs and sleeves in Camosa II, the issuance of reprimands of union members for lapses in quality increased (one of the four operators particularly affected, they said, was not a union member). Requirements to recheck every piece in the bundles accordingly reduced their production and earnings. They maintained that union members were cited for numerous production errors by quality control, by their account unjustly and punitively. The workers linked these citations in part to the poor quality of materials that they had been given to sew and the failure to protect their income when previous errors required correction.

Three other unionized workers from the same sewing unit separately described problems of unfair quality control rejections, as well as with the quality of the production materials reaching them. In the most recent case, the sleeves to which cuffs were to be attached had consistently been cut too long, requiring extra work to compensate; the supervisor had denied protection of their earnings in adjusting to this change in the operation, claiming "that's the way the cloth comes." For these women, the injustice was compounded when errors at an earlier stage in the production process resulted in their work being sent back for checking and correction ("the errors come from way back; they reject them only when they get to us.)"

The production unit at Camosa II that sewed cuffs and sleeves is just one of the units in the plant that had a particularly high concentration of union members. We interviewed six operators from this section separately, and received remarkably consistent accounts of what these workers described as persistent discriminatory treatment. Workers there described being criticized by supervisors and personnel officers for having joined the union, and as a result receiving poor quality materials, being unjustly reprimanded for the quality of their own work, being assigned poor machines, and being denied prompt and effective technical assistance when their machines broke down.

· One worker in cuffs and sleeves told Human Rights Watch that shortly after it became generally known that she had joined the union, the head of personnel approached her and demanded her reasons for joining an organization that would "only stir things up." Following this discussion, the employee maintains, she received more difficult pieces of material to sew. The worker's complaints to her immediate supervisor went unanswered. This affected her ability to meet production quotas and reduced her weekly earnings to between Q140 and Q150 ($20 to $21). It became nearly impossible for her to earn beyond the base rate.

· A member of the union executive told us she had been making Q350 or Q320 ($50-$45) a week in 1994, but after she began asking for union leave in 1995-the law provides for six paid days a month for union work-the chief of production moved her to a different machine and production line. She said the production manager told her "You've been absent a lot. I can't put you anywhere better." She had previously been earning at 100 percent of the production goal, but subsequently found herself earning just Q100 to Q105 ($14 to $15) a week. She was put on cuffs and sleeves, earning about Q120 ($17) a week. She is now getting more work, and earning some Q220 ($31) per week.

The overriding concern expressed by union members was that their union membership was continually a factor in their relationship with supervisors and personnel officers, ranging from their work assignments and the repair of their machines to the protection of their incomes when things went wrong elsewhere in the production process.

Camosa II plant manager Robert Byrd told Human Rights Watch that company policy was to eliminate any discriminatory treatment. Asked if there was preferential treatment for those who reject the union, in terms of work flow or higher paying work, he said that reduction in work and pay may respond, for example, to changing styles, as in a shift from two-pocket to one-pocket shirts. As to favoritism,

I can't say it doesn't happen. But we have seminars in which supervisors are instructed to be fair and honest. To treat everyone alike. If there is any problem we say bring it to your supervisor.

If there is any favoritism, it would be more likely at the level of the work distributor. The distributor, an assistant to the supervisor, matches up the work; when a person completes a bundle, he gives [the new work] out.

The protection system in itself provides a means through which inequities in the piece-rate system may be addressed, particularly as they arise as a consequence of the fluid nature of the production process and its inevitable interruptions. The element of discretion in implementing the protection system, and the lack of recourse for workers facing arbitrary decisions, however, opens the possibility of prejudice against union members. The failure to protect income above the base rate, adjusted to the previous level of average earnings, is a principal object of complaint by staff interviewed by Human Rights Watch, who maintain that it represents an instrument through which union members are treated in a discriminatory, punitive fashion.

Voluntary Severance

Another area in which major discretionary payments raise the possibility of prejudice to union members is that of severance payments for resignation from the firm. While the injunction prevents the company from dismissing workers without a court order, workers can be induced to resign with generous severance payments.

Managers described the provision of voluntary severance payments to Human Rights Watch as a routine company policy. All staff who depart voluntarily are said by managers to receive both the severance payments required by law, which include, among other elements, a proportion of the yearly bonus (the aguinaldo, normally equivalent to one month's salary), and a discretionary payment based on the worker's average monthly salary and years of employment with the company. Departing workers receiving "100 percent" severance benefits (average monthly salary x years of service x 100 percent) receive more or less the equivalent of one month's average pay per year of service. All workers who resign are, we were told, given at least 50 percent of this sum as severance pay in addition to the legal requirements. Workers whose resignation was actively sought by the company, as in situations in which production was to be reduced, may be offered more generous severance payments at the discretion of the company management.

While some (unionized) workers are alleged by union officers to have been paid off beyond the "100 percent" level, Human Rights Watch has not found documentation to substantiate this claim. The personnel department at Camisas Modernas maintains meticulous computerized personnel records, including printouts in the files of each departing worker indicating the calculation of the final benefits required under Guatemalan labor law. A separate record system is maintained in which the record of actual payments made to departing workers is filed, including the company's often generous bonuses based on years of service. Human Rights Watch was given full access to these records, although time constraints made a comprehensive review impossible.

Like the provision for compensatory protection of incomes for those personnel detailed to new assignments or prevented from meeting production quotas by equipment breakdowns, the company's system of severance payments is two-edged. It may, on the one hand, generously provide workers who leave as a result of changing personal circumstances a cushion with which to support their families as they readjust, or indeed provide funds with which to open a small shop or buy a building lot (both were goals described to Human Rights Watch by union members. On the other hand, disproportionate payments to union members who resign could be improper inducements.

A combination of measures tending to severely cut union members' capacity to earn in the plant, while inducements for resignation are tendered, was the package described to Human Rights Watch by numerous union members, as well as some of the non-union members who managers suggested Human Rights Watch interview. The use of such measures was reportedly most widespread in the finishing department of the Camosa II plant.

Pressure to Resign: the Camosa II Finishing Department

Under the court-issued protective injunction, the shutting down of a part of the plant's operations for transfer out of the plant may not lead to outright dismissal of employees, without the permission of a court. But if work on which employees depend to go beyond base pay is eliminated, withheld or transferred, resignations are inevitable. One production unit, Camosa II's finishing department, was a principal stronghold of union membership as early as 1995. A major reduction in its workforce ensued in the course of 1996, accelerating in the weeks before and after the union's petition for negotiation was submitted. The union contends that this reduction was more than a coincidence. While economic and cost cutting considerations may have been involved in the company's calculations, the effect on union support was devastating.62 The means by which this was carried out, despite the terms of the injunction that forbade outright dismissals, was reportedly three-fold:

First, finishing workers were given a reduced work load, despite the plant's relatively unchanged overall production levels, with consonant dramatic reductions in the income of finishing staff. Finishing workers interviewed by Human Rights Watch described a drop in their weekly incomes in the course of 1966 from averages of over Q400 per week to the minimum, less than Q200 per week. The reduction of work to be done in the department, according to some union members, was a result of the sending of some Camosa II products for finishing to contractors in San Pedro Sacatepéquez and, indeed, the removal of equipment for this purpose from the Camosa II plant.63 While Human Rights Watch was unable to confirm this claim, Phillips-Van Heusen management later told us that Camosa II's finishing work had, in fact, been reduced in part by eliminating some of the finishing work on San Pedro Sacatepéquez's production that had previously been done in Camosa II. Contractors in San Pedro, we were told, were now doing finishing work on their production that had previously been sent to Camosa II.64 This was consistent with claims by union sources that finishing frames, tables and other equipment were physically removed from the Camosa II plant in September, immediately after the union presented its petition to negotiate, and taken to San Pedro.

A second measure adversely affecting finishing workers was that the protection of income during "down time" in the finishing department was largely eliminated. At the same time, opportunities to increase income through overtime, working through lunch hours and breaks and on Saturdays-the means by which many workers obtain even minimal production payments above the base rate-were unavailable to workers who were not provided material to work with, operable machines or specific assignments. In the most extreme cases described to Human Rights Watch, workers maintained they were told that they might as well lie down under their workbenches, as they would not be given any work.65 This practice was attributed specifically, but not exclusively, to the head of the finishing department: workers said that in the period before and after the union's petition he would regularly tell them there was no work, that they were not to touch the materials, and that they could sleep on the floor. More commonly, workers in such a case would be sent home with pay at the base rate. Another union member stated that she was told by a supervisor that there would be "no extra hours if you are a member."

Finally, finishing workers were offered generous severance payments for voluntary resignations. A union member who works in the finishing section told Human Rights Watch that as early as in March 1996 managers had talked to unionized finishing staff, and offered 100 percent severance to those who resigned (by her account, some who accepted the offer were then compensated with less than what was promised). A union official maintained that from June 1996 the finishing manager increased the pressure on union members, in practice dividing finishing staff into union and non-union groups, and withholding work from the former. According to another union member, this manager told his staff that "they shouldn't be in the union." The pressure of income reduction, by this account, combined with the inducement of severance payments to result in a rash of resignations by the end of August 1996.

According to personnel records, the finishing department had a roster of eighty-two employees in October 1995: a year later there were only fifty-two finishing department workers. Human Rights Watch confirmed the resignation of nineteen union members from the finishing department during the first nine months of 1996, most of them longstanding company employees. The total may have been higher: union sources claimed that twenty-four members in finishing had resigned in this period. Eight of the workers identified by Human Rights Watch quit in August 1996, in the final month of the union membership drive; four resigned in the two weeks that followed the union's presentation of its petition to initiate negotiations. We were also able to confirm that of the fifteen finishing workers whose service record was known, one had worked for PVH since 1988, two since 1989, and the others had joined the company between 1990 and 1993. In a spot check of records of severance pay, Human Rights Watch confirmed in the several cases examined that 100 percent compensation for years of service was recorded.

While Camosa II's finishing department was hardest hit by resignations during and immediately after the union drive, Human Rights Watch received information on other resignations of union members. Although the total may have been higher, thirteen union members are known to have quit in August (including the eight finishing workers cited above), some in the last week before the union's September 1 general assembly.

Human Rights Watch was also aware of a significant reduction of staff in at least one other unit at Camosa II, the cutting department, which had relatively few union members. In this case, too, work previously done to prepare materials for or from San Pedro Sacatepequez contractors was being done outside the Camosa plant. A non-union member, who has worked in the cutting department for five years, said that her department supervisor had called staff together before Christmas to inform them that there was not enough work, and that those who wantedto leave could do so with 100 percent severance payments.66 Human Rights Watch did not confirm the total number of resignations of non-union members during 1996, but found the overall pattern of unionist resignations disturbing.

Protecting Our People

The piece-rate system and the provision for discretionary payments under company policy provide a powerful means to reward, punish, or otherwise single out employees deemed cooperative or non-cooperative. Managers told Human Rights Watch that it was, indeed, company policy to look out for the welfare of "our people" by protecting workers' income in certain circumstances by authorizing payment based on an average of previous earnings, by loans, grants for medical emergencies, and other staff welfare programs, and finally, by providing generous severance payments. At the same time, management viewed the union as alien to its workforce, and damaging to the company family.

Some managers told Human Rights Watch that they were especially careful not to mistreat unionists and they claimed that non-union workers were treated more harshly and with more scrutiny than union supporters. The production manager at Camosa II denied that union members were treated unfairly, for example, while offering the generalization that union members "feel that they can do anything they want. They feel like they can shout at the boss and be absent all the time."

According to the production manager, the company policy is "to be as fair as possible, to avoid confrontation, even though the union people try to provoke supervisors. One time a union member cursed a supervisor. I called the union head and said that you complain when management uses this tone [with workers]. When they wore T- shirts, provoking supervisors, yelling, blowing little whistles, clamoring for negotiations, our policy was to let them do what they wanted, let them alone, we didn't even pay them any attention." She went on to say that "the union people don't feel like they are part of the family, they feel separate, they have gone against the company." She characterized union supporters as "lazy people who want to bad-mouth the company."

The personnel manager at Camosa II stated that the company has a "union problem. We have to live with it, but we don't have to have confrontation. Union members think that because they are in the union they can ignore the rules." Human Rights Watch saw no evidence that union members were either prone to absenteeism or uncooperative or inefficient members of the work force-to the contrary, we were shown production awards won by many of the union members interviewed. In rebutting charges of discriminatory treatment by supervisory personnel, she indicated that, as the company's legal representative, she was the only company official who had the list of union supporters and that no other supervisors knew who was included on the list. She denied ever discussing the names on the list with supervisors, although workers told us their supervisors had told them that personnel had alerted them to the union members in their units. At the same time, since many union members had previously worn union T-shirts into the plant or had posted signs above their machines, union membership, the list aside, was after September 1996 hardly secret.

We heard similar comments attributed to the two managers by workers. One worker told Human Rights Watch that the production manager at Camosa II had called a meeting after the union's request to negotiate in which she said the union leaders "want to be bosses. They want to control the company." "They are lazy. They don't want to work." Other workers gave Human Rights Watch similar accounts of small meetings called by the productionmanager in the aftermath of the September petition. At the same time, union members claimed to have been the object of particular verbal abuse because of their affiliations. A union member described having been called into the personnel office to be chewed out for having been rude to a colleague: she said the production manager and personnel manager had both taken part. One manager is alleged to have called her a "pig," and closed the session by declaring that "Respect for others is peace and the preservation of one's teeth" ("El respeto al derecho ajeno es la paz, y la conservación de sus dientes").67

Other workers described management actions, particularly in Camosa I, to shield the workforce from contact with the union members of Camosa II, while implying that the union could threaten their safety (although there is no record of union violence there). Several union members from Camosa I, for example, noted that the plant manager there had called staff together when workers from Camosa II came to visit outside the plant, telling them not to be intimidated by the union group. When union members went to Camosa I from the other plant, for example, employees were told they would be let out early, and that "we will accompany you." While described by non-union interviewees as a thoughtful measure to reassure them, such actions also served to stigmatize union membership (which would not in itself be a violation of rights standards); however other interviewees saw the shepherding of staff by managers as a deliberate measure of intimidation, particularly in a context in which being seen with a union organizer could be viewed as a black mark against a particular worker. It was the combination of stigmatization and the unilateral protection of those not in the union from those who were that may have shaded into intimidation in violation of the right to freedom of association.

An inter-plant union visit, organized after the "pact" was presented in September, was in fact aborted by the cutting short of the work day and the evacuation of the Camosa I plant. A non-union worker from Camosa I, interviewed by Human Rights Watch at the suggestion of management, described plant manager Anthony Mim's reaction when he learned that a delegation of Camosa II union members was coming by bus to Camosa I to meet with colleagues at the factory door after work:

Anthony wasn't there earlier, but arrived in a rush. It seems he was warned that the union members were on their way. He quickly called together all the supervisors to the administrative offices and told them. When they came out, Anthony told us that to avoid problems, we should leave rapidly. So we left early, all of us went out. People who had planned to work overtime until 6 p.m left. When the others got there, there was hardly anyone still there. We left all together at the same time, with the supervisors, like it was an emergency. Anthony said he didn't want any of his workers to find themselves with problems. `Now we're not going to leave at six, but we're going make this an emergency departure.'68

Another account of the same incident, by a union member, explained that when the Camosa II people came, "the lights went out, and we were taken out of the factory."

At the same time, in contrast to some managers at Camosa II, who were described by union members as openly antagonistic to union members, the Camosa I management was reportedly respectful of union members and not openly discriminatory. One union member from Camosa I, who had joined the union early in 1996, stressed that the personnel manager there had treated her well, "though she knew I was in the union." The same employeedescribed the management there as particularly sensitive and responsive to issues of concern to the staff, citing the rapid action taken after a brief work stoppage in December 1996 (to protest a change in the manner in which Christmas bonuses were calculated) as a case in point (bonuses were reportedly recalculated in accord with the formula used in previous years). At the same time, this worker noted that "all of the leadership of the union at Camosa I resigned" and believed that the company "had bought off the leadership" (it was unclear whether this was a reference to the resignations in December 1991 of the last of the original union executive, or the resignations of four union leaders in June 1996).

While the general picture given of the Camosa I management style was one of fair-minded paternalism in staff relations, some measures ostensibly "to protect" employees may have constituted undue interference in these workers' access to union information and members. Protection, in turn, may well have shaded perceptibly into a form of intimidation. At a meeting of members of a section at Camosa I, for example, called in early January by the supervisor, workers were reportedly advised that "If you have a problem, talk to me about it. Talk to me and not to other people." According to a staff member who described participating in the meeting, no mention was made of the union, but staff were told "Don't sign anything. Be careful." ("No vayan a firmar. Con cuidadito.") This would, in many contexts, be considered a reasonable sharing of views and information: in the Guatemalan context, however, some workers saw it as intimidation.

In several interviews with non-union staff introduced to Human Rights Watch by managers, a contrast was further drawn between the management styles of the two plants. A union member from Camosa I explained that when plant manager Anthony Mims spoke to them of the union, he said joining was a matter for us to decide. "We can't stop you from doing what you want. If you are badly treated, I will support you." Staff from Camosa I, however, at the time of the interview, had just one week of experience working in the consolidated plant in what was previously Camosa II. A non-union member said the contrast was notable:

At Camosa I some of our co-workers said they were afraid to join the union. The head of personnel came and said it was up to us to decide. If you want. She went to each section and said we shouldn't be afraid. Not whether it was good or bad. This was some months ago, when our coworkers from here [Camosa II] began to visit. The difference here is with the people in charge. There is a lack of communication between the managers and the workers, although there are better facilities here. Many people here are unhappy. It could be the head of personnel. People are afraid of her. It could be a matter of character. This affects the rest. Because the people here are very different from [those of Camosa I].69

A union member, also newly transferred from Camosa I, expressed almost the same view to Human Rights Watch; while the management at Camosa I had been respectful, the situation at the expanded Camosa II plant was a new experience, and "many of the workers, who are very humble people, cry when they are criticized." A Camosa IIworker, in turn, told Human Rights Watch that the normal procedure when people were called in to personnel to be chastised "was for several of the chiefs to gang up on the person called. So they leave crying."

A June 1995 mission by the Inter-Faith Center on Corporate Responsibility had noted, in a report on its findings that was provided to PVH, that particular concern was expressed by workers about the deputy manager/personnel manager of Camosa II, Yvonne de Sevilla. In describing the treatment of personnel, or "associates" in the PVH lexicon, Fr. La Mar emphasized that "Sra. Sevilla is seen as especially intimidating," and concluded that she is feared and seen as the bottle neck to improved relations in the plant. Obviously much personal power rests in her hands."70 Before her promotion to deputy manager (while retaining her position as personnel manager), and legal representative of the firm in dealings with the labor ministry, Sra. Sevilla had been head of personnel, an assignment apparently dating to 1989.

Company personnel have also obliquely acknowledged that past personnel practices had been problematic, as in the following dialogue with plant manager Robert Byrd:

Q Managers have been accused of abusive treatment of union members-and others. How have senior managers responded to this?

A [The Camosa II personnel officers] were left on their own under the previous manager, who wasn't oriented to the PVH policies. They dealt with most personnel issues. [Name withheld] has come a long way in learning how to handle people. She never mistreated anyone intentionally. She's tough. [Abusive treatment] may have occurred two years ago. She doesn't make people cry.

Threats of Violence

Human Rights Watch heard little to suggest that threats of violence were a prominent feature of the dispute between the union and management at Camisas Modernas, S.A. That threats of violence continue to be described as part of the relationship seems due to the background of trade union repression in Guatemala, and to a lesser extent alleged threats attributed to a PVH manager five years ago. Human Rights Watch found that both the company and the union took threats of violence or perceived threats very seriously. Senior managers cited suggestions of threats to their own colleagues. The personnel manager at Camosa II told Human Rights Watch that in September 1996 she began to receive anonymous late-night telephone calls at home. She also said that one of the outside union organizers had asked a worker for her home address.71 Camosa II plant manager Robert Byrd told Human Rights Watch that he, too, had received several suspicious calls at his home, in which callers hung up after a threatening silence, and one in which a caller had said, "You'd better be careful," in English.

When a celebration of the union's anniversary was held on September 23, 1996, in which a mariachi band from the Coca Cola union took part and an international delegation of trade unionists was present, management reacted with concern when it appeared that one of the foreign visitors had taken the production manager's photograph. This same manager stated that she had been followed by a man on a motorcycle when she was travelling between Camosa I and II. Because of these incidents, the company decided to hire private security guards to accompany the two senior staff dealing most directly with personnel issues back and forth to their homes and on when they traveled during the day. The security guards also remained on duty near the entrance to the plant during the day.

The plainclothes guards retained for personal security in October 1996, in turn, were viewed with concern by union members interviewed by Human Rights Watch. These observers separately described what, from their perspective, had been intimidating behavior. Union members said the men, usually just two in number, would persistently attempt to eavesdrop on the small knots of workers that gather outside during breaks and the lunch hour, and would audibly report larger gatherings on their walkie-talkies. They were equipped with walkie-talkies (or cell-phones), and had revolvers under their suit jackets: interviewees insisted not only that they had seen the guns, but that the security men had ostentatiously displayed their weapons, pulling back their jackets, in an intimidating manner. Company spokesmen, in turn, denied that the security men had engaged in the surveillance or intimidation of union members in the street and said they had not been armed. Robert Byrd told us, for example, that he never saw them with weapons.

The fact that guards assigned to provide security for two senior company officials were left on their own to interact with workers at a time of heightened tension over the union contributed to a combustible atmosphere. Human Rights Watch investigator Kenneth Anderson found the presence of these armed guards troubling and recommended that while security is an serious issue in Guatemala, they should not be armed. In response the company notified Human Rights Watch in late November that the guards would be removed. They remained for an additional two weeks and were then withdrawn.

Union activists reported other forms of intimidation to Human Rights Watch. Members of the union's executive committee reported other incidents in which they were photographed and these were seen as cause for alarm. The union's acts and accords secretary told Human Rights Watch that in November 1995, immediately after a union meeting, an unidentified man took her photograph from a car. She described this as unmistakable, in that there was a flash ("un flashazo"). Although it could not be determined who had taken the photograph, or why, the incident was considered sufficiently alarming by the union to be reported to the Human Rights Procurator. The account serves, in any case, to illustrate the climate of the current labor discussions.

Another member of the union's executive committee told of being photographed by a man in a van as she was leaving a meeting at the labor ministry in July 1995. The van pulled away after the photograph was taken. The worker filed a complaint with the human rights ombudsman's office. The complaint, however, was not followed up on. The same worker reported that after this incident, she observed different men observing her home from a distance on three occasions.

One worker interviewed by Human Rights Watch told of an incident that she was involved in outside of Camosa II with a manager. A worker had ordered floral arrangements to be dropped off outside the plant for a funeral service. A vendor said to this worker, "The manager is bringing these flowers for you, for the union." She told us that she responded, "They'll need more than two arrangements because there are a lot of us in the union. It would be better to send these flowers to [two names withheld]." Sometime later, by this account, a manager came out and told the worker, "Be careful, little one, because we could make it true that these flowers are for you." The worker reported that she told the manager that she didn't mean anything by her comment, that she was simply angry. The manager, according to the worker, said "Do you have the courage necessary to kill even a fly? You'd better be careful."

Another worker interviewed by Human Rights Watch told of an incident that occurred with his supervisor in the finishing department (whose name is known to Human Rights Watch). On the final day of the union drive, when asked by his supervisor what he was doing outside the plant, the worker replied,"I'm here supporting my union." The supervisor allegedly responded, "At other companies people have been kidnapped and sometimes been found dead. Be careful." The union man complained to the company that this was a form of intimidation. He told us that immediately after the exchange the worker conveyed the information to several co-workers who urged him to convey it to a union organizer. He said he felt that the supervisor intended to intimidate him or discourage him from continuing with the movement.

An act of intimidation by a personnel officer, with a view to forcing a friend to relinquish her union membership, was described to Human Rights Watch at the end of a long discussion concerning the interviewee's own direct experiences. Her account of the fear experienced by her friend provides a useful insight into the context of the union's efforts, even if providing only heresay evidence of the action described. By this account, her friend had been called into the personnel office in late October, 1996, challenged about her union membership, and warned that the personnel chief knew every move she made. She apparently signed on the spot a prepared letter of withdrawal from the union. The description of the fear, and the shame she felt in being so afraid, is testament to the context in which labor organization takes place today in Guatemala.

She was called into the office, after the union demand. She then signed a letter of resignation, and in the bathroom told [a union leader], "I resigned. I don't want to know anything about the union." [Name withheld] had told her "I know everything that goes on. Even if you start planning, I know." She says she is so afraid. She said "why should I take the risk? I'll end up in a ravine with my mouth full of green flies. Who would take care of my children. Who would care for my children. I'm so afraid of what they told me in the office. I'm shocked even with myself. It's better to be apart from this."

While it has not been possible to confirm this account in full, the manner of the testimony, the existence of other accounts of direct pressures to withdraw from the union, and the documentary record of computer-generated letters to this effect (some of them from individuals without electricity in their homes) are elements that should be taken into account in its assessment. Human Rights Watch was able to confirm that the individual had, in fact, informed a union official that she "did not want to be involved" with the union, but did not see the letter of withdrawal.72

Human Rights Watch was also alert to the possibility that union organizers may have acted in an intimidating manner with respect to others who were not part of the union, but found little evidence to this effect. In interviews during our brief November 1996 visit, some of the non-union staff introduced by managers to our delegate objected vehemently to visits to their homes by union members and outside organizers seeking to persuade them to join the union. Several complained that the union had obtained their home addresses by means of getting them to sign up for a raffle. Some of the ten non-union members interviewed by Human Rights Watch in January 1997, again introduced to us by managers, also referred to home visits. One described a visit as having irritated her, but the general picture presented of house visits-a traditional organizing tactic-and other efforts by union members to promote membership was not one of deliberate or perceived intimidation, although some of those interviewed suggested that other workers may have been intimidated:

· One of the non-union interviewees said she did not believe people were afraid to say they didn't want to join the union. She said she knew the union carried out house visits to try "to convince" people to join the union, and that she wasn't afraid of this, but that in her own case, when she saw a person was going to her house one Saturday she had gone to a neighbor's house and waited for the visitor to leave before going home. Asked why, she said she was irritated because she had already told them she didn't want to join.

· Another non-union member said some others feel the union might pressure them to join, but that she discounted this; "no one is going to take you by the collar and make you join the union.

· A non-union member with two years experience said she had spoken to union members, and that they had gone to her house. She said she didn't know the union's rules or the benefits joining might have, so she didn't join.

· A worker at Camosa I said that when union members stood in front of the factory door, wanting to explain what they were doing, he had simply said no, he didn't want to be involved and that he had walked on. He said to Human Rights Watch "I walk alone. I go to work alone. I leave alone," and that he doesn't agree with the union.

Although one fight was reported away from the company premises in 1996, in which a union member and a non-union member were reportedly involved, the exact facts of this matter could not be established by Human Rights Watch. At the same time, neither managers or union members identified this incident as a consequence of pro-or anti-union intimidation during our January visit. Indeed, plant manager Robert Byrd tended to discount charges of intimidation by union members of their workmates as a major concern:

Q Are you aware of cases of intimidation by the union?

A There was one case of two boys in a fight, after mutual accusations; they were called in; but the fight was off the company premises, outside our jurisdiction. I can't tell of any intimidation.

Prof. Anderson also received complaints from several staff who said they had been asked to sign something at the entrance to a dance which the union had subsequently used to claim they were members. The union denied this, and in Human Rights Watch's subsequent review of membership records we found it implausible that anyone could have inadvertently filled out or signed the detailed two-page membership forms used by the union at least since 1995. One of the ten non-union members interviewed at length by Human Rights Watch in January 1997 repeated the allegations "that they tricked us." She said "they made us sign a paper when we went to a party," but made clear that this had been in 1989, at Camosa I. She also claimed that she was one of the union members subsequently forced to resign, in early 1992, as a consequence of her union membership, but was allowed to return to work after "repenting" (see below). None of the other non-union members interviewed made similar claims either concerning the early years of the union's organization drive or the 1996 membership drive.

Human Rights Watch received documentation concerning just one case in which an employee who was initially registered as a union member (whose fully completed and signed membership form was also reviewed), claimed subsequently in a letter, produced on a computer printer, to have been compelled to join the union. This is discussed further below, in a review of the series of letters of resignation from the plant or withdrawal from the union before and after the draft collective agreement was presented.

Threats of Plant Closure

The appeal to workers not to join the union on economic grounds was another theme of worker interviews, although in recent months there were no reports that company managers threatened that the company would leave Guatemala rather than negotiate with the union. After Human Rights Watch representative Kenneth Anderson raised worker concerns regarding such statements and rumors in November 1996, an explicit pledge was made by international PVH executive Robert Crocco in a letter dated November 27, 1996 to Kenneth Roth, executive director of Human Rights Watch, "We are staying in Guatemala, rumors to the contrary." That notwithstanding, local managers were alleged to have told workers since then that union negotiations "would break the company," and told union members that "you will be out on the street; you'll be leaving for the street." The production manager and personnel manager at Camosa II, in particular, were identified as having threatened the jobs of union members in the months after the September 2 petition. According to one union member's account: "In the months before the Draft Proposal, [the personnel manager] warned workers that they would lose their jobs, that the union's activities were `illegal.'"

Similarly, PVH employees expressed concern about the explicit or implicit threat of being blacklisted for further employment in the maquila sector, a long standing concern at the PVH plant. Again, when this concern was raised by Human Rights Watch in November 1996, a constructive response was received from company executives. PVH said by letter that henceforth letters of recommendation concerning outgoing personnel would indicate onlytheir dates of employment and the work performed; Human Rights Watch saw copies of this regulation posted on the walls of the Camosa II plant during its January 1997 visit. While it remains to be seen whether union members who leave the plant are, in fact, able to find subsequent employment without the obstacle of a blacklist, workers continued to express concern to Human Rights Watch that they might face such reprisals. One union member told us that a supervisor was alleged to have said that "People who get themselves into the union are not going to find work when they leave" in late 1996.

Vulnerability of Union Executive Committee Members

A particular challenge faced by union members has been the vulnerability of members of its executive board (and the consultative council members who play a back-up role to them). The last member of the executive committee named as the union sought recognition in March 1991 (most of them from Camosa I) had, according to one report, resigned by January 1992.73 One non-union member, who was one of the workers whom managers suggested Human Rights Watch interview, described her own experience during the organization drive at Camosa I, and said she was herself forced to resign-or dismissed- in 1992:

She began by saying that she had been "fooled" into joining, eight years before, and that she and others had subsequently been "dismissed" because the leaders of the union had provoked it by demanding recognition. "So they were dismissed." When asked to confirm that they had all been dismissed, she said "No, we resigned from the company." Asked why, she said it was "because of being in the union." "One day the union leaders left. They abandoned us. We arrived in January and they were gone." She said that "They [the company] talked to us again, and they told us that yes we could come back. The boss [la jefa] gave us a chance to join again. I repented for having committed an error."74

Two of the union leaders who resigned from the company, in June 1996, had previously described economic pressures on them to a human rights delegation to the plants the year before. In his report, Maryknoll Fr. Joseph P. La Mar, who met managers and staff on behalf of the Inter-Faith Center on Corporate Responsibility, cited pay records that documented dramatic drops in income of four workers who "happen to be members of the Executive Committee of the Union." They included Carmelo Zacarias Morales, the union's secretary general, who had previously been earning Q400 per week, but whose more recent pay slips showed earnings of Q120.16, Q124.35, Q95.72 and Q173.52; this was attributed to the assignment of a poorly operating machine. Similarly, Celia Elisve Rodríguez, a member of the union's Consultative Council, was reported to have seen her income drop from a norm of Q225 per week to weekly salaries of Q84.25 and Q142.06 at the time of Fr. La Mar's visit.75 Human Rights Watch subsequently found that the labor ministry file concerning the union's petition to negotiate includes the company'sreport on the resignations. A letter to the labor inspectorate from Sra. Seville, deputy manager of the plant, dated June 10, 1996, reports the resignations of the union's secretary general, Carmelo Zacarias Morales; its finance secretary, Ana Silvia Najarro; and consultative council member Celia Elisve Rodríguez Alvarez (the letter did not mention the resignation of Maria Luz Lopez, a second Consultative Council member who resigned nor did PVH give any explanation for the resignations).

Union Members' Letters Relinquishing Union Membership

The significant numbers of resignations of union members from the company in the course of 1996, which union members attributed to the combination of inducements and cuts in earning power, were paralleled by a smaller number of withdrawals from the union. Human Rights Watch spoke with some of these individuals, as well as close friends and colleagues of other former union members. Human Rights Watch also reviewed a number of withdrawal letters, almost all of them produced on a computer printer, signed by union members in the immediate aftermath of the presentation of the petition to negotiate. The form and substance of union members' letters to renounce union membership, combined with their timing and allegations of discriminatory treatment and possible reprisals against union members, was a concern already raised by Human Rights Watch with company executives in November 1996. At that time, Human Rights Watch representative Kenneth Andersen recommended an immediate halt to the involvement of management in the preparation of union members' letters to renounce their membership. While the company did not directly acknowledge that this occurred, international executives responded to this recommendation by ordering that PVH will not facilitate workers' renouncing union membership. "Workers will write their own letters of resignation or if illiterate, will dictate their letters in the presence of a witness."76

Human Rights Watch received further testimony from workers in January 1997 of pressure by personnel officers to sign prepared letters withdrawing from the union, although these concerned incidents prior to our November 1996 visit. However, in light of the finding of widespread company encouragement of union members to resign from the union or quit the company these letters take on a more serious character as part of a broader campaign. Copies of letters relinquishing union membership were provided to Human Rights Watch by the union, which kept some of these in its membership records; and by the company. We were also able to examine others in our review of sample personnel files, made possible without restriction by the plant's personnel department. Some examples of the wording of these letters follow:

· A Camosa II worker since January 1992 joined the union in August 1996 and submitted a computer-generated letter withdrawing from the union in November 1996 "for personal problems and/or matters, asking your understanding." ["por problemas y/o asuntos personales, esperando su comprensión.] According to union membership records, she subsequently rejoined the union.

· Another union member who withdrew from the union shortly after its September 1996 petition was presented, and who later rejoined, according to union membership records, presented her letter of withdrawal on paper from a yellow legal pad-paper that is not widely used in Guatemala. Although handwritten, the language, apart from spelling errors, was similar to that of the computer generated letters. This employee had joined the union in August 1996. Her letter of withdrawal, dated September 17, 1996, declared that:

By this means I address you to present my irrevocable resignation from membership in the union for personal reasons thanking you to not take into account my name, signature, and identity card number which you now have as I have no further interest in continuing with you.77

· Another letter of withdrawal from the union, also drafted on a yellow legal pad, and dated November 1996, was presented by a union member who had worked at Camosa II since 1993 and had joined the union in August 1996.

I am addressing you to request the return to me of the form I signed with my information. Due to my irrevocable decision to resign from the union that you represent from today my motives are personal...78

In two cases known to Human Rights Watch, union members who relinquished their membership were transferred to improved positions; one gave promotion as the reason for withdrawing from the union in a letter to the union, while another indicated to Human Rights Watch that he had come to see that the company was treating him well and that the demands made in the union's negotiating petition were unnecessary. Former union colleagues claimed that withdrawal from the union had been a condition of preferment, but this view could not be verified.

In one case, an employee claimed, in a letter cited below, that her affiliation with the union had been involuntary. Human Right Watch reviewed the signed membership application of this individual, which included her home address, identity card number and other details. This notwithstanding, the same individual subsequently signed a computer-generated letter of September 4, 1996 stating that union members had made her sign the union application and asking that her name be removed from the list of union members:

on Monday 2 September at the time of my leaving work, some people from the union approached me, who made me sign a sheet through which I became a member of it. In this regard, I do not authorize the appearance of my name as a member of the union.

In reviewing the two documents, Human Rights Watch concluded that the signatures were the same. While the nature of the two-page application form and the personal information entered on it made it difficult to imagine it having been filled out and signed inadvertently, the allegation that this was done under pressure was not corroborated further. The language, format and computer printing of the letter may imply improper interference by company personnel in this worker's decision to withdraw from the union, or alternatively, assistance by the personnel office to respond to a employees' spontaneous request for assistance.

Asked for insights into the rash of resignations from the union immediately after it sought to negotiate with

the company, Mr Byrd responded that "People resigned because they saw the truth; people wrongly claimed credit for what the company had done for them; they could see the positive results" of the company policy."

Union Members' Letters of Resignation from the Company

Formulaic letters of resignation from the company may not in themselves be unusual in industry, particularly where an injunction permits only voluntary resignations without a court order. In one case examined, for example, from February 1996, an employee's personnel file includes a form letter to the labor court requesting authorization for her to end her employment.

In spot checks of personnel records of union members who resigned in 1996, it was also possible to determine that high rates of discretionary severance payments were in fact made; without a full review of compensation paid to staff who left the firm in 1996, however, this is not conclusive evidence of inducements having been offered to remove union members from the work force at PVH. It does, however, given the high proportion of union members affected, give cause for concern and further investigation. Some examples of resignation letters from the company follow:

· An employee of three year's tenure, who had joined the union in June 1995 and left the Camosa II plant in February 1996, signed the following:

I respectfully address myself to you to inform you of my decision to retire from the company because of personal problems, indicating to you that my resignation is irrevocable from today.

This individual, according to personnel records, had been employed three and a half years and qualified for legally required severance pay of less than Q700 ($100.). This was the figure of severance pay given on the records filed with the Ministry of Labor. The separate ledger on additional payments reports her actual severance pay, including the discretionary supplement based on her time employed, at 100 percent: nearly Q4,400 ($657).

· An almost identical letter of resignation was on file for an employee who joined the work force in August 1991, as a folder, and joined the union in 1995. She resigned at the end of January 1996. Her legally required severance pay, according to personnel records, was just Q600. ($85). Her actual severance pay after four and a half years of service, in accord with the company formula, was nearly Q6,000. ($857.).

· Another folder, an employee with nearly seven years tenure, who joined the workforce in May 1989, joined the union in June 1995. Her computer-generated letter of February 1996 presented her "irrevocable resignation." She was awarded a severance payment of nearly Q9,500. ($1,357.).

· A packer, who had joined the company in mid-1992 and the union in June 1995, resigned from the company on August 21, 1996. In her computer-generated letter she declared that "due to personal problems," she was obliged to resign. Human Rights Watch did not review the record of her final severance payment.

In its January 1997 visit to the Phillips-Van Heusen facilities, the matter of letters signed by union members with apparent company assistance was again raised. Camosa II plant manager Robert Byrd, was asked about letters withdrawing from the union that appeared to be form letters produced on a computer printer, and responded that "There was no computer printout from this factory with a form letter. Not in Camosa II."

A disturbing similarity in the texts and presentation of most of the letters examined would have suggested strongly that the company had provided more than casual assistance in their drafting, computer entry, and printing for signature, even had employees interviewed not claimed that members were handed printouts ready for signature. Human Rights Watch noted, for example, that similar wording was used in letters of resignation from the firm on file in the personnel dossiers of departing union members. These letters of resignation, on the basis of a casual examination, were produced on the same computer printer and in a similar format to the union withdrawal letters. As part of a larger pattern of harassment they are especially disturbing.

55 The labor ministry's 1996 edition of the labor code, in a footnote to article 10, cites article 1 of the ILO's Right to Organize and Collective Bargaining Convention (1949), also known as Convention number 98, noting that Guatemala has ratified this convention. 56 The obligation of states party to ILO Convention 98 to investigate and provide redress to anti-union discrimination, as well as the difficulty posed the worker in providing such treatment, is addressed in recommendations of the ILO's Freedom of Association Committee. Recommendation 740, for example, notes that:

The existence of basic legislative provisions prohibiting acts of anti-union discrimination is not sufficient if these provisions are not accompanied by effective procedures ensuring their application in practice. Thus, for example, it may often be difficult, if not impossible, for a worker to furnish proof of an act of anti-union discrimination of which he has been the victim. This shows the full importance of Article 3 of Convention No. 98, which provides that machinery appropriate to national conditions shall be established, where necessary, to ensure respect for the right to organize.

Op. cit., ILO, Committee on Freedom of Association, p. 149. See also recommendation 741: "Respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial," and 742: The existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice."

57 International Labor Organization, Committee on Freedom of Association, Recommendation 700, p. 142. 58 See above. 59 This partly typed and partly handwritten fact sheet noted that payment averages cited did not include overtime, Christmas bonuses or vacation bonuses. Pay scales were also set out distinguishing the sliding wage scales determined by the individual workers' achievement of production goals (identified as 100 percent). The chart indicates that the average income of the 567 "timeworkers" was $11.18. Just 3.5 percent, a total of 16 workers, were producing below the minimum standard, but were "paid at minimum," $5.33 daily. The 100 percent goal was exceeded by 28 percent of the workforce (129 workers), with earnings at 100 percent of $14.16 daily. Seventy percent of the workers (322) were within the 34 percent to 99 percent efficiency range, with earnings of $11.55 daily for those at 79 percent and $12.86 for those at 90 percent. 60 This union member had in her first years at Camosa I worked on a number of lines as an operator and was well paid. Since the mid-1996, she said she is earning no more than Q140 ($20) per week; with no opportunity for extra hours, and that this is not enough to survive. 61 This interviewee showed Human Rights Watch her last two pay slips; one totaled Q137 ($19), the other Q107 ($15), after deductions. Loans, IGSS payments, and installment payments on purchases through the Solidarismo store are deducted through the payroll. In the pay slips examined, deductions did not represent significant sums. 62 Changes introduced in a firm's production process with the intent of eliminating a trade union, on a pretext of economic criteria, would violate Guatemalan law and international rights standards. Recommendation 748 of the ILO's Committee on Freedom of Association, for example, makes clear that the Right to Organize and Collective Bargaining Convention (Convention 98), protects workers from both dismissals and other prejudicial treatment by reason of their union membership, and that such treatment should be punishable:

No person should be dismissed or prejudiced in his or her employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment.

Similarly, Recommendation 705 addresses a firm's recourse to subcontracting as an anti-union device, with specific reference to its use to justify the dismissals of union leaders. The principle enunciated might equally apply to measures to force resignations of trade unionists:

Subcontracting accompanied by dismissals of union leaders can constitute a violation of the principle that no one should be prejudiced in his or her employment on the grounds of union membership or activities.

63 Union leaders maintained that on September 2, 1996, equipment from Camosa II's finishing department was dismantled and removed from the factory. They maintained that drivers of the trucks into which the equipment was loaded later told them that it was delivered to PVH contractors in San Pedro Sacatepequez. 64 Plant managers told Human Rights Watch that PVH's yearly production in Guatemala was pegged at 300,000 dozen shirts. Of these, 100,000 were produced in the wholly owned Camosa plants (now a singled consolidated operation). Another 100,000 were produced by contractors in the town of San Pedro Sacatepequez, some fourteen kilometers from the Camosa plant, although this production process was supervised and supported by the Camosa plant and PVH managers. The full production process for the final 100,000 was contracted out to two Guatemala city maquilas. The Cardiz plant, run by Carlos Arias, president of the association of maquila owners Vestex, was said to produce an annual quota of 60,000 dozen shirts; a Korean-owned plant, CMC, produced the balance. Carlos Arias was also described as the licensee who produced PVH shirts for the domestic Guatemalan market. La Vaughn Seay, Human Rights Watch interview, Guatemala City, January 20, 1997. 65 Human Rights Watch interviews with Camisas Modernas, S.A. workers, Guatemala City, January 17 and 20, 1997. 66 This worker, who attributes her reluctance to join the union to her family's advice "that it was a bad idea to get involved in such problems," said she was happy with the treatment given her by the company. She was, however, feeling isolated as the cutting department had become so small; from a level of about forty-five staff three years before to just twelve. At present "there are hardly any union members" in the unit. The manager reportedly promised to protect the incomes of staff at their previous average for six weeks. In her own case, this allowed her to continue earning some Q450 a week ($64), rather than dropping to the minimum base wage of less than Q150 ($21). 67 This interviewee also noted that the conversation was taped; she and others interviewed said that it was a normal personnel practice, with or without the employee's permission, to tape record disciplinary interviews. 68 "Ya no nos vamos a salir a las seis, vamos a salir de emergencia." The same interviewee noted that on a later occasion, when the Coca Cola union brought its mariachi band to the plant at the end of the work day, the work force left normally, without excitement ("tranquilo"). At the close of the interview, she expressed concern about the future of the plant: "There are rumors that they are going to sell. We've talked to Anthony [Camosa I manager Anthony Mims], who said he would stay. We have confidence. But often this has happened. After so many years working in the company, one becomes fond of it." 69 Asked how she had been selected to meet with Human Rights Watch, this interviewee said that before Christmas 1996 a meeting had been called of her work section at Camosa II and asked to pick a representative. She was chosen by her co-workers. In contrast, no representative process were described in the selection of non-union workers to meet with the delegation from the Camosa II workforce. Similarly, while Camosa I reportedly held fairly regular meetings of employees of the various production areas, in which workers could discuss production and other issues with managers, such meetings were not a routine at Camosa II before the consolidation. Camosa II manager Robert Byrd told us an Employee Action Committee Meeting was envisaged as a means for two-way communication between management and staff. These were described as weekly meetings with management, with worker representatives drawn at random from a box. Nine or ten a week were to serve at any one time, with three chosen each week for three week periods. It was unclear when the Action Committee concept was introduced, and whether it was in fact operating: other managers said there was no regular forum in which managers had open discussions with work units or the whole staff as a group. There was no tradition of "open meetings," although Mr Byrd stressed that "The Action Committee doesn't limit the `open door' policy. People can at any time ask to see the production manager or me." 70 Fr. Joseph P. La Mar, MM, Interfaith Center on Corporate Responsibility, "Visit to PVH Corporation's Camosa I and II Maquilas," June 20, 1995, p. 6. 71 The individual cited for asking for her address, flatly denied this in an interview with Human Rights Watch. 72 Another union member said "pressures increased after the Draft Proposal was put forward. Meetings were called at the end of November of all personnel, divided in groups. The purpose was to explain why we don't need a union. `There is no need.' They also called the most timid [into the office]." 73 Op. cit., GLEP et al, "The right to organize in Guatemala...", p. 6. The same source reports that after the resignation of the two last members of the executive over the Christmas break in December 1992, managers called 28 union supporters to a meeting on January 7, 1992 and offered them severance pay for their resignations. By this account all 28 resigned. 74 Human Rights Watch interview, Camosa II, Monday January 20, 1996. Human Rights Watch was subsequently able to confirm that the interviewee had initially been hired at Camosa I in October 1989; a new application for employment with only minimal details entered was on file documenting her reemployment in March 1992. The personnel file did not indicate the reason for her having left the plant earlier in 1992. 75 Fr. Joseph P. La Mar, MM, Interfaith Center on Corporate Responsibility, "Visit to PVH Corporation's Camosa I and II Maquilas," June 20, 1995, p. 7. The same source reports a reduction in the income of Monica Felipe Alvarez, who was then the organization secretary and is now secretary general as having been reduced from a norm in the range of Q250 to Q280 per week to Q130, attributed to her being assigned "a machine that needed constant repair." Victoriana Pilar Perez, secretary of acts and accords then and at the time of writing, was said to have seen her income reduced from Q350. per week, with recent pay slips of Q120.16. and Q 152.02, which was attributed to a lack of work assignments. This was confirmed to Human Rights Watch by Victoriana Perez, who said her earnings in 1994 had averaged Q320 to Q 350 per week; she said her earnings had gone down to Q120 per week for much of 1995 and until May 1996, when the situation had improved. She said her current earnings, averaging around Q220 per week, have still not caught up with her earning levels before she had become active in the union. 76 Robert Crocco's letter to Kenneth Roth, November 27, 1996. 77 The spelling in the Spanish original of the uncommon word irrevocable-was irrevacable, suggesting that it was unfamiliar to the signatory and that the text may have been dictated. 78 Irrevocable in this letter was also misspelled (as irrebocable).