V. NAALC CASE SUMMARIES
Cases Filed in the United States
Initially filed separately in February 1994, these cases were eventually reviewed together by the U.S. NAO, because the petitioners in both accused Mexico of permitting factories in Chihuahua State to fire workers who tried to organize unions, in violation of the NAALC's obligation to effectively enforce freedom of association law. The International Brotherhood of Teamsters (IBT) filed the Honeywell case, and the United Electrical, Radio and Machine Workers of America (UE) filed the petition on General Electric. The U.S. NAO held hearings and published a report on the case in October 1994. It decided not to recommend ministerial consultations with Mexico (see Appendix I).
3) Sony Case (U.S. NAO Case No. 940003)
The International Labor Rights Fund, Coalition for Justice in the Maquiladoras, American Friends Service Committee, and National Association of Democratic Lawyers (Asociación Nacional de Abogados Democráticos, ANAD) filed this case in August 1994, alleging that Mexico had violated the NAALC's obligation to effectively enforce laws related to freedom of association and the right to organize, collective bargaining, and minimum work hours for a single day. According to the petitioners, from the early 1990s workers were required to work overtime, were fired for trying to organize a union at the factory, and suffered at the hands of authorities who failed to organize fair union elections. They also alleged that Mexican labor tribunals had acted unfairly against the workers by improperly handling their request for union registration.
The U.S. NAO accepted the freedom of association and collective bargaining issues for review, but declined to investigate the allegations related to violations of Mexican law related to working hours. It held hearings and published a case report in April 1995 that recommended ministerial consultations on the issue of union registration. As a result of ministerial consultations that concluded with an agreement in June 1995, the Mexican government organized three conferences on union registration and produced a study on the topic by Mexican experts.
4) Second General Electric Case (U.S. NAO Case No. 940004)
This case alleged Mexican non-compliance with laws related to freedom of association and the right to organize in a General Electric plant. However, in early 1995, the petitioners withdrew the case because of their dissatisfaction with the U.S. NAO's handling of cases 940001 and 940002.
5) Fishing Ministry Case (U.S. NAO Case No. 9601)
In June 1996, Human Rights Watch, the International Labor Rights Fund, and Mexico's National Association of Democratic Lawyers submitted this case, arguing that Mexico was violating the NAALC by failing to enforce freedom of association laws and by not ensuring that federal labor tribunals met the accord's article 5 standard for fairness. The petition argued that ILO Convention No. 87, related to freedom of association, should be considered part of Mexico's domestic freedom of association law and included among the norms reviewed for compliance with the NAALC, because the Mexican legal system considered ratified treaties to be part of domestic law.
Workers within the country's Ministry of Fishing, which later became the Ministry of Environment, Natural Resources and Fishing (Secretaría del Medio Ambiente, Recursos Naturales y Pesca, SEMARNAP), were blocked from organizing a union to be called the Democratic Union of SEMARNAP. This occurred both because Mexican law prohibits the formation of more than one union within government ministries and because, when the workers won the technical right to form their union, officials failed to honor that right. For much of the time that the legal battle over formal recognition went on, a union that supported the long-ruling Institutional Revolutionary Party (Partido Revolucionario Institucional, PRI) existed within the ministry. As a result, the courts prohibited the workers from forming the Democratic Union of SEMARNAP, deeming it an unlawful "second union."
The petition also argued that Mexico's tri-partite Federal Conciliation and Arbitration Tribunal, which deals exclusively with federal government employees, was biased against the workers because of the way the tribunal's members are appointed. Mexican law establishes that only one federation of government employee unions can exist, and gives that federation the power to name the "workers'" representative to the tribunal. The federation supported the ruling PRI and fought strongly against the Democratic Union of SEMARNAP, creating a conflict of interest between the workers' representative on the tribunal and the Democratic Union of SEMARNAP.
The U.S. NAO held a hearing in December 1996 and published its report in July 1997. It recommended ministerial consultations on the very limited topic of the status of international labor law within Mexico (see Appendix I). As a result, a conference was held in Baltimore on this issue in 1997.
6) Maxiswitch (U.S. NAO Case No. 9602)
Filed in October 1996 by the Communication Workers of America (CWA), the Mexican telephone workers' union, and the Mexican federation of unions in the goods and services industry, this petition argued that the Mexican government failed to uphold NAALC principles related to freedom of association and the right to organize in the Maxiswitch electronics plant in Sonora State.73 Petitioners alleged that a protection contract-one drawn up between the company and a pro-company union, without input from workers-blocked an independent union from organizing at the facility, which is owned by the Taiwanese Silitek Corporation. Other problems included threats against workers trying to organize. Petitioners also argued that the labor tribunal that heard the case was biased against the independent union, in violation of NAALC article 5.
The U.S. NAO scheduled a hearing on the case, but when Mexican authorities promised to take action to permit a fair organizing campaign, petitioners withdrew the case.
7) Pregnancy Testing Case (U.S. NAO Case No. 9701)
Submitted in May 1997 by Human Rights Watch, the International Labor Rights Fund, and Mexico's National Association of Democratic Lawyers, this case accused the Mexican government of failing to uphold NAALC anti-discrimination principles by permitting widespread pregnancy-based discrimination in export-processing (maquiladoras) factories in northern Mexico. The petitioners submitted detailed documentation demonstrating that women were routinely required to undergo pregnancy tests as a condition of employment, so that employers could screen out women who would require maternity benefits if hired. Some women who became pregnant after being hired were also pressured to quit their jobs. Petitioners also accused the government of failing to meet the NAALC's article 4 requirement that victims of labor rights violations have access to tribunals; under the Mexican government's interpretation of the law, only people with an established work relationship can seek redress from labor tribunals, so a woman who is not hired because she is pregnant has no such opportunity for redress.
After holding a public hearing in November 1997, the U.S. NAO published a report on the topic in January 1998. The report criticized the practice of pressuring pregnant women to quit their jobs, but stopped short of condemning the practice of pre-hire pregnancy testing. The NAO recommended ministerial consultations "for the purpose of ascertaining the extent of the protections against pregnancy-based gender discrimination afforded by Mexico's laws and their effective enforcement by the appropriate institutions"74 (see Appendix I). As a result of the consultations, several conferences were held-in Mexico and the United States-to address issues related to women's rights at work.
8) Han Young Case (U.S. NAO Case No. 9702)
Several organizations filed this case in February 1998, alleging that Mexico failed to uphold NAALC principles related to freedom of association and the right to organize, the right to bargain collectively, and occupational health and safety.75 In 1997, workers at the Baja California State plant of Han Young, which produces chassis and platforms for tractor-trailer trucks for Hyundai, began to organize a union. They accused the existing union, affiliated with the Revolutionary Confederation of Workers and Peasants (Confederación Revolucionaria de Obreros y Campesinos, CROC), of being nothing more than a front for management. "As of April 1997, the CROC had never held a meeting with workers, never shown workers a copy of their contract with Han Young, and did not make its existence as a contractual representative known to the workers," petitioners argued.76
According to the complaint, workers were forced to work in a polluted environment and suffered pay irregularities. In addition, their attempt to organize independently of the CROC was met with actions including the firing of workers leading the organizing drive. Finally, the labor tribunal unfairly supported the CROC, in violation of NAALC article 5.
The U.S. NAO held a public hearing in February 1998, and issued two reports, one on freedom of association and the right to organize (April 1998) and the other on the occupational safety issues (August 1998). An agreement on ministerial consultations was reached in May 2000 (see Appendix I). It called for the Mexican government to promote the circulation of information on collective contracts, although no reference was made to how this would be done or the goals to be met. Continued government-to-government talks were also to take place to discuss methods of improving health and safety.
9) Echlin Case (U.S. NAO Case No. 9703)
In December 1997, petitioners led by the UE filed this case, alleging Mexican violations of NAALC principles related to freedom of association and the right to organize, the right to bargain collectively, and prevention of occupational injuries and illness. They also accused Mexico of violating the NAALC's obligation related to fair labor tribunals.77
The alleged buses took place in an auto parts factory then owned by the U.S.-based Echlin company. In 1996, workers in the factory in Ciudad de los Reyes, Mexico State, began to organize a union independent of the PRI. Petitioners alleged, and the U.S. NAO confirmed, that the workers faced threats of physical attack and dismissal, and that thugs intimidated workers during union voting. For instance, the workers were required to cast public votes while being intimidated by pro-PRI union officials. Authorities turned a blind eye toward these abuses, and labor tribunals facilitated and approved the outcome of such tainted processes. In addition, the petition charged that government officials failed to enforce health and safety laws at the plant, largely due to what was described as a seriously flawed inspection system. A substantially similar case was filed at the same time in Canada (Canadian NAO Case No. 98-1).
The U.S. NAO held a public hearing on the case in March 1998 and published a report four months later. In May 2000, Mexico and the United States arrived at a ministerial agreement (see Appendix I). This called for several public seminars to be held, and noted that the U.S. and Mexican governments would jointly discuss health and safety techniques. Its action plan also included overall goals for the Mexican government to pursue, without detailing how these were to be achieved: "The Mexican Department of Labor and Social Welfare will continue promoting the registry of collective bargaining contracts in conformity with established labor legislation. At the same time, efforts will be made to promote that workers be provided information pertaining to collective bargaining agreements existing in their place of employment and to promote the use of eligible voter lists and secret ballot elections in disputes over the right to hold the collective bargaining contract."
10) AeroMéxico Case (U.S. NAO Case No. 9801)
Filed in August 1998 by the Association of Flight Attendants (AFA) in the United States, this case accused the Mexican government of violating NAALC standards related to the right to strike by forcing striking flight attendants at AeroMéxico to go back to work in 1988. Justifying their actions on national security grounds, the Mexican government intervened by executive order to take over the airline and end the strike.
The U.S. NAO declined to hear the case, arguing that the takeover was carried out according to Mexican law. Without any supporting argumentation, the U.S. NAO determined that hearing the case would not further the interests of the NAALC.
11) Tomatoes Case (U.S. NAO Case No. 9802)
The U.S. NAO opened this case, which alleged that Mexico failed to enforce NAALC principles related to child labor on tomato farms, after the U.S. Department of Labor forwarded details that had been submitted to the secretary of labor in 1997 by the Florida Tomato Exchange, an industry group. The Exchange had sent the information to the secretary after the Department of Labor and Department of Agriculture announced an investigation into child labor practices in agriculture in the United States. Such an investigation was acceptable, according to the Exchange, as long as a similar investigation took place in Mexico, which produces much of the winter tomato crop consumed in the United States.78 "Given the fact that such illegal practices create an unfair advantage against the growers and their employees in the United States," the Exchange argued, "we do not understand the reasons for such inaction by the Departments of Labor and Agriculture."79
Rather than conduct an investigation into the Mexican tomato industry, the U.S. Department of Labor forwarded the documentation to the U.S. NAO. The Florida Tomato Exchange had no interest in pursuing an NAO case, however, because it doubted that the outcome would be effective.80 The U.S. NAO closed the case when it did not receive further information from the Exchange.
12) McDonald's Case (U.S. NAO Case No. 9803)
In the first case accusing the Canadian government of failing to enforce NAALC principles, the International Brotherhood of Teamsters and other petitioners alleged that McDonald's closed a restaurant in Quebec in 1998 rather than permit a union to be certified there.81 Filed in October 1998, the case was accepted for review by the U.S. NAO but withdrawn by the petitioners after the Canadian government agreed to undertake a study of anti-union plant closures as part of an overall review of the Canadian Labor Code.
13) Canada Post Case (U.S. NAO Case No. 9804)
The twenty-one petitioners in this case accused the Canadian government of failing to uphold NAALC principles related to free association, collective bargaining, and health and safety. The case, filed in December 1998, alleged that legislation in Canada-the Canada Post Corporation Act-defined rural letter carriers as independent contractors, not employees of the postal service, so that rural letter carriers lost the right to organize and bargain collectively. In February 1999, the U.S. NAO declined to review the case.
14) TAESA Case (U.S. NAO Case No. 9901)
The Association of Flight Attendants, based in Washington, D.C., filed this case in November 1999, accusing the government of Mexico of failing to uphold NAALC standards related to freedom of association, collective bargaining, minimum employment standards, and occupational safety and health. According to the complaint, flight attendants at Mexico's Executive Air Transport, Inc. (TAESA) tried to join the Association of Flight Attendants of Mexico (ASSA) in 1997, but found that the union election process inhibited them from organizing and bargaining collectively. Petitioners said flight attendants who supported the organizing effort were fired, and minimum work standards were violated because flight attendants were given inadequate safety training and required to fly more hours than safe. Another issue of concern related to the ability of flight attendants to seek a collective bargaining contract on their own when an airline-wide contract already existed.
The U.S. NAO held a public hearing in March 2000 and issued a case report in July 2000. The report recommended ministerial consultations on the case, without specifying exactly which issues should be included; at this writing it was too soon to know if consultations would take place or, if they did, what result they would produce.
Auto Trim/Custom Trim/Breed Case (U.S. NAO Case No. 0001)
In June 2000, more than two-dozen organizations filed this case, accusing the Mexican government of failing to enforce health and safety standards at two export-processing factories in Tamaulipas State. Auto Trim and Custom Trim/Breed sew leather covers on steering wheels and gearshifts in the cities of Matamoros and Valle Hermoso, respectively. "Many workers suffer from illnesses and injuries related to exposure to toxic substances and muscular-skeletal disorders caused by poor ergonomics," according to the petition.82 Mexican government agencies responsible for enforcing health and safety laws had failed to do so, according to the petitioners.
The U.S. NAO accepted the case for review and held a public hearing in December 2000. Although the agency's deadline for publishing its report on the case fell on February 27, 2001, the U.S. NAO decided to postpone its release in order to incorporate information sent at the last minute by the Mexican government.
Cases Filed in Mexico
Filed in February 1995, this case accused the government of the United States of failing to promote NAALC principles related to freedom of association and the right to organize. It arose in the context of an organizing campaign by the Communication Workers of America (CWA), which was trying to establish a union at a Sprint Spanish-language telemarketing facility in California. Sprint's closure of the facility led to the accusation that it had done so to prevent the union from consolidating. Although the National Labor Relations Board (NLRB), which enforces U.S. labor law by investigating and remedying violations, ruled in favor of the workers, an appeals court overturned the ruling.83
The Mexican NAO issued a public report in May 1995 that recommended ministerial consultations. "The Mexican NAO is concerned about the effectiveness of certain measures intended to guarantee" freedom of association and the right to organize in the United States, it wrote.84 As a condition of the February 1996 agreement reached through ministerial consultations, the United States organized a public forum in San Francisco at which people could express their views on sudden plant closures and their effect on freedom of association (see Appendix I). The NAALC Secretariat also conducted a study on this issue.
17) Solec Case (Mexican NAO Case No. 9801)
Petitioners submitted this case in April 1998, arguing that the government of the United States failed to uphold its labor law related to freedom of association and the right to organize, the right to bargain collectively, minimum wage and employment standards, and the prevention of occupational injuries and illness at the California-based Solec, which manufactures solar panels. Petitioners alleged, for example, that company officials fired workers who sought pay increases. Official inspections carried out to ensure company compliance with health standards were not exhaustive, according to the complaint, thereby violating safety standards. Petitioners also accused the United States of violating NAALC article 5 by maintaining unfair labor tribunals.
In its August 1999 report on the case, the Mexican NAO called for ministerial consultations. In May 2000 the Mexican and United States governments agreed to a program based on those consultations. Under the ministerial agreement, the United States was to organize a government-to-government meeting to discuss the application of U.S. law focusing on the issues raised in this petition and Mexican NAO Case Nos. 9802 and 9803 (see Appendix I). The United States agreed also to conduct public forums and outreach sessions, including in the states of Maine and Washington, with migrant workers, community groups, and government officials.
18) Washington State Apples Case (Mexican NAO Case No. 9802)
Petitioners filed this case with the Mexican NAO in May 1998.85 One of the broadest cases ever filed under the NAALC, it focused on labor problems in the Washington State apple industry. The petitioners alleged that the United States government failed to enforce the rights to organize and bargain collectively, minimum labor standards, non-discrimination in employment, job safety and health, workers' compensation, and migrant worker protections.
Petitioners documented problems including illegal threats of firings and plant closings, bribes, and pressuring workers to wear anti-union buttons. Regarding the treatment of migrants, the petitioners argued that many provisions of U.S. labor law fail to extend the same legal protections to migrants as to nationals, including in workers' compensation laws. They argued that only half of all migrant workers are even covered by minimum wage standards, and that workers often receive below-poverty wages in the sector.
In addition to labor law enforcement violations, petitioners accused the United States of breaching NAALC article 2, concerning high labor standards, by excluding agricultural workers from some labor law protections or affording them inferior protection, and by maintaining health and safety laws that failed to establish necessary safeguards. They contended that the United States had not only failed to make essential improvements in its laws related to workers' rights, but had further weakened those laws. The complaint also pointed to structural problems affecting the National Labor Relations Board (NLRB) as a violation of the NAALC article 5 requirement that the state parties provide fair institutions for administering labor law.
The Mexican NAO issued a report in August 1999, calling for ministerial consultations on the enforcement issues raised by petitioners. The ministerial agreement, reached in May 2000, included planned outreach sessions at which these issues were to be discussed with migrant workers as well as a public forum for workers, unions, employers, and government officials (Appendix I).
19) DeCoster Egg Farm Case (U.S. NAO Case No. 9803)
Petitioners filed this case in August 1998, alleging that at the DeCoster egg farm in Maine, the United States failed to uphold NAALC standards related to the protection of migrant workers, minimum employment standards, elimination of employment discrimination, protection of occupational injuries and illnesses, and compensation in cases of occupational injuries and illnesses. Petitioners accused the United States of failing to take appropriate measures to deal with problems, including false pretexts for hiring and to end discrimination against Mexican workers. The case also accused the United States of failing to ensure access to labor tribunals and guarantee the fairness of such tribunals, and of failing to distribute information about its labor laws.
The Mexican NAO published a report on the case in December 1999. In May 2000, the Mexican and United States governments agreed on a program based on ministerial consultations (see Appendix I). It included planned outreach sessions at which these issues would be discussed with migrant workers as well as a public forum for workers, unions, employers, and government officials.
20) Department of Labor Case (Mexican NAO Case No. 9804)
Petitioners in this case, led by the Yale Law School Workers' Rights Project, took issue with a memorandum of understanding agreed to by the U.S. Department of Labor (DOL) and the Immigration and Naturalization Service (INS) in 1992. Filed in September 1998, the case accused the United States government of failing to enforce minimum employment standards and statutes designed to protect migrant workers.
The memorandum of understanding (MOU) permitted Department of Labor inspectors who received complaints about minimum wage and overtime violations under the Fair Labor Standards Act to determine the legal status of the immigrants who made the complaints. This subjected complainants to the possibility of deportation for having sought to have their labor rights enforced.
After the petition was filed, the U.S. government agencies involved drew up a new MOU in which the Department of Labor pledged not to share with the INS information about the immigration status of persons who file complaints relating to unpaid minimum wages or overtime. Information on immigration status obtained by the Department of Labor through its own inspections, however, could still be given to the INS, according to the new MOU. The case was filed simultaneously in Canada (Canadian NAO Case No. 98-2).
Cases Filed in Canada
In September 1998, the Canadian NAO held a public meeting on the case, following multiple communications with the petitioners, Mexican government, and representatives of Dana, which had purchased the plant from Echlin after the petition was filed. The Canadian NAO published two reports on the case. The first focused on the freedom of association, collective bargaining, and labor tribunal issues raised by petitioners (December 1998). The second dealt with health and safety issues (March 1999). At this writing, the Mexican and Canadian governments had yet to conclude ministerial consultations.
22) Department of Labor Case (Canadian NAO Case No. 98-2)
This case, related to an MOU between the U.S. Department of Labor and Immigration and Naturalization Service, was filed simultaneously in Mexico and Canada. (For a description of the case, see Mexican NAO Case No. 9804, listed above as entry No. 20.)
23) EFCO Case (Canadian NAO Case No. 99-1)
The Labor Policy Association, an organization that represents human resource officers in the private sector in the United States, and EFCO, which manufactures windows, doors, and walls, filed this petition in April 1999. They accused the U.S. government of failing to enforce NAALC's article 3 requirement that the signatories promote compliance with their labor law by, among other things, "encouraging the establishment of worker-management committees to address labor regulation in the workplace." The U.S. National Labor Relations Act prohibits employer domination of labor organizations, and the National Labor Relations Board had ruled that management-worker groups at EFCO were sponsored and dominated by management, not workers.86 In June 1999, the Canadian NAO opted not to review the case, arguing that the petition had not established that the United States had violated the NAALC. The Canadian NAO did not grant the petitioners' request for reconsideration.
73 The Mexican petitioners were the Sindicato de Telefonistas de la República Mexicana (STRM) and the Federación de Sindicatos de Bienes y Servicios (FESEBS).
74 U.S. NAO, "Public Report of Review of NAO Submission No. 9701," January 12, 1998.
75 The petitioners were the International Labor Rights Fund, Support Committee for Maquiladora Workers, National Association of Democratic Lawyers (Mexico), Union of Metal, Steel, Iron and Allied Workers (Mexico), Maquiladora Health and Safety Support Network, Worksafe! Southern California, United Steelworkers of America, United Auto Workers, and Canadian Auto Workers.
76 International Labor Rights Fund, et al., "The Case of Han Young de Mexico, S.A.," October 28, 1997, p. 7.
77 The petitioners included some thirty organizations from Canada, Mexico, and the United States.
78 Human Rights Watch telephone interview with John Himmelberg, lawyer for the Florida Tomato Exchange, January 4, 2001.
79 Letter from John Himmelberg, an attorney writing on behalf of the Exchange, to Alexis Herman, secretary of labor, July 29, 1998.
80 Human Rights Watch telephone interview with John Himmelberg.
81 The other petitioners were the Teamsters of Canada, the Quebec Federation of Labor, Teamsters Local 973, and the International Labor Rights Fund.
82 Current and former Workers at Auto Trim and Custom Trim/Breed Mexicana, et al., "Submission to the U.S. National Administrative Office under the North American Agreement on Labor Cooperation," June 30, 2000, p. 1.
83 See National Labor Relations Board, Case 20-CA-26203, August 30, 1995, and U.S. NAO, "Status of Submissions," May 19, 2000, available on the Internet at www2.dol.gov/dol/ilab/public/programs/nao/status.htm.
84 Mexican NAO, "Report on Review of Public Submission 9501/NAO MEX" (U.S. NAO Staff Translation), May 31, 1995, p. 11.
85 The petitioners, from Mexico, were the Union of Workers in the Metal, Steel, Related Iron and Similar Industries (STIMAHCS), the Authentic Labor Front (FAT); the National Workers' Union (UNT); and the Democratic Workers' Front.
86 For further information, see Lance Compa, "NAFTA's Social Dimension: The North American Agreement on Labor Cooperation," working paper for the Labor Law and Labor Relations Program of the International Labor Office, Geneva, October 1999, p. 30.